Jurisprudence Question Paper (1) Thanmayi

OCTOBER/NOVEMBER 2021
JURISPRUDENCE QUESTION PAPER
10 MARKS :
1. Explain the value and nature of Jurisprudence?
Ans : Jurisprudence is the study of the Theory and Philosophy of Law. The term
‘jurisprudence’ has been derived from the Latin term ‘jurisprudentia’ which literally translates
to ‘knowledge of law’ or ‘skill in law’. The Roman civilization, which is popularly known as
the bedrock of all human civilizations in the world, started to question the meaning and nature
of law. Ulpian defined law as the “knowledge of things divine and human”. According to him,
the law is the science of right and wrong. Several jurists in Europe began to deliberate upon
the meaning of the law.
Jeremy Bentham, the Father of Jurisprudence, stated that the “science of jurisprudence” has
nothing to do with ideas of good and bad. His disciple, Austin, defined jurisprudence in the
following words, “Science of Jurisprudence is concerned with Positive Laws that is laws
strictly so-called. It has nothing to do with the goodness or badness of law.” According to him,
laws are commands made by the sovereign and their non-obedience leads to imposition of
sanctions. He termed such laws as positive law and stated that the main subject matter of
jurisprudence is the study of positive laws. According to Holland, “Jurisprudence means the
formal science of positive laws. It is an analytical science rather than a material science.”
Keeton defined jurisprudence as, “the study and systematic arrangement of the general
principles of law.”
Jurisprudence is the study of the Theory and Philosophy of Law. The subject, in its entirety,
differs from other social sciences. There are several ideas with regards to the meaning of
jurisprudence and its nature. This makes it difficult to define. Each country has its own idea
of jurisprudence shaped by the social and political conditions in which the development of
law took place in that region. Modern jurisprudence is tied to sociology on one end and
philosophy on the other. The ideas of jurisprudence that are popular in major legal systems
throughout the world today have their origins in the West.
Nature of Jurisprudence
Law regulates significant aspects of human life. In simple terms, law is a set of regulations
which are formulated by the state and are binding upon its subjects. Jurisprudence is the
science of law.
It has been described as the “grammar of law”. To effectively interpret the law, it is essential
to understand its origin, nature and meaning. Not only interpretation, but even the legislative
process requires legislators to keep several factors in mind to ensure that the law that is made
is effectively enforced and followed by all. Jurisprudence studies the law to facilitate better
legislation as well as interpretation. In doing so, it uses the wisdom provided by other social
sciences.
According to Paton, modern jurisprudence is mostly based on social sciences and philosophy
since it examines the historical aspects of law to address the chaos created by conflicting legal
systems.
Describing jurisprudence as a “lawyer’s extraversion”, Julius Stone is of the opinion that the
objective of jurisprudence is to view and examine law from the eyes of disciplines other than
law. Roscoe Pound states that the subjects of jurisprudence, ethics, economics, politics, and
sociology might be quite distinct at the core, however, at a certain point they overlap with each
other. He further adds on that it is impossible to understand their respective cores without
studying this overlapping with other social sciences. According to him, all social sciences must
especially cowork with jurisprudence. Let us evaluate the interrelation of jurisprudence with
other social sciences.
Jurisprudence and Sociology
The objective of sociology is to study human actions in a social environment. Its studies
humans as members of social groups. Law is an important element of society. Therefore,
sociologists must understand law to understand society. However, a sociologist would not look
at law in the same way as a lawyer. While a lawyer is concerned with the law itself, a
sociologist is concerned with the impact of the law upon society. There is a separate branch of
jurisprudence which comprises of sociological theories of law. Not only sociologists but
lawyers too have to understand the society to understand the law. For instance, crime is
essentially an act of social deviance and to understand the law of crimes, a basic understanding
of the society is required. Earlier, the judges used to decide punishments based on popular
opinion. However, now the process has become more technical and professional in nature with
the opinions and studies of criminologists being taken into consideration.
According to Paton, it is essential to understand the relationship between law and social
interests since such a study would lead to a better understanding of the evolution of law. The
human factor in law cannot be entirely neglected. The ideas of jurists like Keeton asserting
the necessity of studying law as devoid of any social interests is, indeed, compelling but
appears to be quite impractical.
Jurisprudence and Psychology
Psychology is the science of human mind and behavior. Its objective is to understand the
reasons behind the way an individual responds to a stimulus. All the social sciences, including
jurisprudence, study human actions. Psychology occupies a central position among the social
sciences for it is imperative to understand the human mind before studying human actions.
Law plays a regulatory role in a man’s life. One cannot regulate without understanding the
nature of that which is to be regulated. Therefore, it is important that a lawmaker understands
basic psychological concepts. Such an understanding would enable the lawmaker in ensuring
that the law is not only made but also effectively followed by the people.
It may be argued that jurisprudence is in no way concerned with the workings of a human
mind.
However, psychological researchers have greatly contributed to penology and criminology.
The analytical positivists stress upon the importance of sanctions that are imposed by law.
Some jurists believe that the sanctions are mostly psychological ones.
Jurisprudence and Ethics
Ethics scientifically studies human conduct. It deals with the concept of ideal human conduct.
Such an ideal state is determined by popular opinions of what is good and what is bad. It
depends upon the moral values of the society. Crimes are acts against the society at large which
are penalized by law. Generally, law does not concern itself with the science of ethics.
Sometimes ethics may help in the determination of whether an act should be criminalized or
not. However, it must be noted that something that is unethical may not be a crime and vice
versa. Ethics deals with the values and beliefs about ideal human conduct. The law deals with
the regulation of human conduct. Thus, a jurist must have a basic understanding of the science
of ethics to examine a law.
Austin divorced ethics from jurisprudence. The same has been criticized by many, for, it is
believed that complete separation of ethics from jurisprudence would completely cut out the
science of law from all forms of social contact and reduce it to a “system of rather arid
formalism”.
Jurisprudence and Economics
Economics refers to the science of wealth. Both, jurisprudence, and economics aim for the
betterment of the lives of the people. Economics aims for such betterment through the
satisfaction of the needs and wants of the people, while jurisprudence, the science of law, aims
for the betterment of the lives of the people through the enactment of welfare legislations.
Wealth forms an important source of happiness, peace, and fulfilment in an individual’s life.
Therefore, to enact good welfare legislations, a legislator must be mindful of the fundamental
concepts of the science of wealth, that is, economics. Moreover, economic factors also lead to
crime. Therefore, an understanding of economics is essential to address and prevent crime in
society. Law also protects people from economic exploitation.
The intimate relation between law and economics was first emphasized by Karl Marx. After
his theory, several jurists began to evaluate the relation between the science of wealth and the
science of law.
Jurisprudence and History
History studies the events and happenings of the past. One of the important areas of
jurisprudence is to understand the origin and evolution of law. Thus, the relation between
jurisprudence and history is extremely close. In fact, there is an entire separate historical
school of jurisprudence.
Jurisprudence and Political Science
According to Friedmann, jurisprudence is linked to philosophy at one end and to political

theory on the other. The concept of law, as we know it today, originated with the concept of
state. Political Science is the science of the state. The analytical school of jurisprudence
considers law as the command of the sovereign. This ‘sovereign’ is what is known as the state.
The various political theories regarding the origin of the state have been used by jurists to
formulate theories regarding the origin, nature and functions of law.
The various social sciences are deeply inter-related. This makes it impossible to study a single
social science in complete isolation. The primary objective of all social sciences is to study
human actions and behavior in different forms. Thus, it is important for a legal professional to
be mindful of the intimate relations that jurisprudence shares with other social sciences.
Value of Jurisprudence
The purpose of jurisprudence is to study the law and legal concepts and analyze the same to
facilitate better understanding of legal complexities. Therefore, the theories of jurisprudence
are quite useful in solving complex legal problems in the practical world. The various studies
and analysis of the legal concepts help a legal professional in sharpening his legal acumen.
The subject has immense academic value. One of the most important features of jurisprudence
is its relationship with other social sciences such as sociology, political science, ethics, etc.
Therefore, research in the field of jurisprudence yields great number of social benefits.
Moreover, jurisprudential concepts make way for sociological perspectives in law, thereby
preventing it from being reduced to rigid formalism. Jurisprudence is known as the “grammar
of law”. It helps in the effective expression and application of legal concepts to real-life legal
problems. It greatly helps in the interpretation of law and determination of legislative intent.
It stresses upon the importance of considering present social needs over the ideas of the past
while dealing with legal problems.
Jurisprudence is also known as the “eye of law”. The human eye senses the light reflected
from objects to make them visible. Similarly, jurisprudence throws light on several
fundamental legal concepts to facilitate their effective application in deliberation of legal
problems.
Indian Perspective:
The Hindu legal system is one of the most ancient legal systems of the world. It is based on
the concept and philosophy of “Dharma”. The Hindu concept of dharma might appear to be
like the natural school of jurisprudence. Dharma refers to the order set by nature and the
adherence of human beings to such natural order. Dharma includes the concept of nyaya or
justice. The term natural order implies to the cosmic order- the law which sustains the entire
universe. The Hindus believed that dharma ensures that humans exist in harmony with the
entire cosmos or universe.
The philosophy of Dharma is found to be encoded in various ancient Hindu texts known as
the “Dharmashastras” (Code of Law). Some of the most important ones are:
• Manu Smritis – it is the systematic collection of all rules of Dharma Shastras- covering
all the branches of law then in force. The simple language and great clarity in its
composition made the Manu Smriti the most authoritative source of ancient Hindu
jurisprudence.
• Narada Smriti- It consists of both substantive as well as procedural laws.
• Yajnavalkya Smriti
• Arthashastra- The political treatise of Hindus
The modern Indian Legal System is based on the common law system. The ancient Hindu
system is denounced greatly to ensure that the Indian state remains secular in nature. Thus, the
ancient Hindu legal system has lost its relevance in the modern world.
Though several thinkers have questioned the utility of jurisprudence, it remains one of the
most important subjects of law. The purpose of the law is to regulate society to maintain order.
Jurisprudence ensures that law remains connected with society and its philosophies. Without
jurisprudence, the law would be reduced to a formalistic science which may appear to facilitate
its goal of regulation. However, in the long run, it would only lead to a situation of chaos and
constant conflicts between law and society.
2. Sociological School of Jurisprudence
Ans : The sociological school of jurisprudence started dominating over the other schools in
the initial years of the 20 Century. It aims to study the circumstances that led to the emergence
of legal institutions and those which control their scope and applicability thereafter. It is
completely unconcerned with the ethical constituents of law. Let us look at some of the notable
sociological jurists and thinkers.
One of the most important aftermaths of the Industrial Revolution was the increased tendency
towards socialization amongst the people. It was recognized that to ensure justice, it is
important to strike a balance between the overall welfare of the society and the protection of
individual liberties. Thus, it was opined that the society is an important element in an
individual’s life and vice-versa. Approaches made from this perspective are known as
sociological approaches.
Duguit (1859-1928)
Leon Duguit challenged the existing ideas on the concepts of State, sovereignty and law and
viewed them from a social perspective. According to him, the most important social reality is
the interdependence of the people. With the technological and scientific advancement of man,
this interdependence has also increased. Specialization has increased to such an extent that an
individual needs the help and support of other individuals to survive. It has become impossible
for man to survive independently, without the membership of any community. Thus, social
interdependence is not an idea or a theory but an important social fact. According to Duguit,
all humans must strive to ensure that individuals work and exist in perfect harmony with each
other.
This is known as the principle of “social solidarity”. He goes on to say that all human activity
and organizations must be tested based on their contribution towards ensuring social solidarity
and that the State must not enjoy any extra privileges. State is also a human organization which
is necessary to protect the principle of social solidarity. The principle of social solidarity is the
object as well as the limit and extent of the powers of the State. According to him, “Man must
so act that he does nothing which may injure the social solidarity upon which he depends; and
more positively, he must do all which naturally tends to promote social solidarity.”
Rudolf von Ihering (1818-1898)
Ihering studied the genesis of Roman law and jurisprudence. He stressed on the importance of
“purpose” in guiding the human will. According to him, just as a stone cannot be moved
without any external force, the human will cannot operate without any specific purpose.
According to him, the purpose of law is to protect interests. Interest refers to the “pursuit of
pleasure and avoidance of pain”. Individual interest is partly affected by social factors wherein
an individual takes the interest of other people into account. According to him, law strives to
ensure individual good only to an end and not an end in itself. The end is the collective good
or overall welfare of the society. He was also of the opinion that law is not the only method to
regulate society. There are other means and methods as well. Within a society, while there may
be several aspects which exclusively fall within the domain of law, there are certain aspects
wherein no legal intervention is required. He recognized the coercive character of law which
is why his approach is said to be a modern approach towards the study of law.
Roscoe Pound (1870-1964)
The works of Dean Roscoe Pound have greatly contributed to the school of sociological
jurisprudence. His ideas are a product of his constant confrontation with sociological and
philosophical problems as well as the working of the American courts. Although some may
describe him as completely pragmatic or a utilitarian, he never really denied the important part
played by abstract legal philosophy in the development of legal institutions. However, he did
approve of the various limitations that have been imposed upon it by time and place. Pound is
credited for the growth of the functional attitude in jurisprudence. Functional attitude refers to
the attitude of looking at the functional aspects and working of law rather than its abstract
contents. According to him, the purpose of sociological jurisprudence is to ensure that social
facts are taken into consideration while formulating, interpreting, and applying laws.
Theory of Social Engineering
Pound frequently stated that the task of a lawyer is analogous to that of an engineer. Pound
defined interests as wants or desires which are asserted by individuals in a society. Law must
attend to such assertions to create an organized society. According to him, the purpose of social
engineering is to build a society in which maximum wants are satisfied with minimum friction
and waste. Thus, it must balance competing interests. Pound classified various interests as
follows:
1. Private Interests- These are an individual’s “interests of personality” such as physical

integrity, reputation, freedom of volition and freedom of conscience.
2. Public Interests- These are the interests asserted by individuals either involved in
politics or as viewed from the standpoint of political life.
3. Social Interests- These are the interests pertaining to the social life of an individual and
generalized as the interests of social groups. These may pertain to:
• General Security
• Security of social institutions
• General Morals
• Conservation of Social Resources
• General Progress
• Individual life
One of the most important outcomes of sociological jurisprudence is that it promoted field
study to evaluate the interrelation between law and society. Another important outcome is that
it evaluated abstracted ideas on an empirical basis. Critics have argued that the sociological
school of jurisprudence teaches “a little of everything except law.” They further state that a
textbook of sociology cannot be converted into that of jurisprudence by simply changing the
title. Nevertheless, it is difficult to deny the importance of sociological school in the study of
law for; firstly, it helps us understand the evolution of law in a better manner, secondly, the
element of human interest shall always play a prominent role in law and lastly, study of social
interest leads to a better understanding of the legal system.
3. Discuss the theories of punishment
Ans: Various theories are advanced in justification for punishing the offender. The view
regarding punishment also kept changing with the changes in the societal norms. They are of
following kinds:
1. Deterrent theory
The term ‘Deter’ means to abstain from doing an act. While the main purpose of this theory is
to deter the criminals from doing the crime or repeating the same in the future. Under this
theory, severe punishments get impose upon the offender so that he abstains from committing
a crime while it would constitute as a lesson to the other member of the society.
In the words of Salmond- punishment is before all things deterrent and the chief aim of the
law of crime is to make the evil-doer an example and warning to all who are like minded as
him. He further stated that offenses are committed by reason of conflict of interest of the
offender and the society.
While this theory concept could be determined in the words of Manu from ancient India.
According to him punishment or “dandh” are the sources of righteousness because people
abstain from committing wrongful acts through the fear of punishment.
2. Retributive theory
This theory is based on the principle- ‘An eye for an eye, a tooth for a tooth…” here, retributive
means to give in return. The object of the theory is to make the criminal realize the sufferings
of the pain by subjecting him to the same kind of pain, as he had imposed on the victim. The
theory has been regarded as an end as it only aims at revenge taking rather than sound welfare
and transformation.
Salmond puts his words stating that to suffer punishment is to pay a debt due to the law that
has been violated. Revenge is the right of the injured person and the penalty for wrongdoing
is a debt which the offender owes to the victim and when the punishment is given the debt is
paid.
While this theory was never recognized as a just theory because it plays a role in self-
motivation for committing a crime on the ground of justice for injustice. Overall, it could be
stated as it was a kind of abatement prompted by society to victims.
3. Preventive theory
The preventive theory is founded on the idea of preventing the repetition of crime by disabling
the offender through measures such as imprisonment, forfeiture, death punishment, etc. In the
words of Paton, ‘this theory seeks to prevent the prisoners from committing the crime by
disabling him.’ It pre-supposes that need of punishment for crimes simply arises out of social
necessities, as by doing so the community is protecting itself against anti-social acts which are
endangering social order.
However, this theory was also not a just method as stated by jurist Kant and others that merely
by awarding a term of imprisonment is not going to reduce the crime unless reformative efforts
are made to integrate him in the mainstream of society through the process of rehabilitation.
4. Expiatory theory
This theory is solely based on the concept of morality, rather being much more concerned with
legal concepts. It emphasizes more on ancient religious perceptions regarding crime and
punishment when prisoners were placed in isolated cells to repent or expiate for their crime or
guilty from their core of the heart and the one who succeeded in doing so were let off.
This theory is based on ethical considerations due to which it lost its relevance in the modern
system of punishment.
5. Reformative theory
This theory emphasizes the reformation of offenders through the method of individualization.
It is based on the principle of humanistic principle that even if an offender commits a crime,
he does not cease out to be a human being. And an effort should be made to reform him during
the period of incarceration. This theory is based on the principle of ‘hate the sin, not the sinner.’
The focal point of the reformist view is that an effort should be made to restore the offender
to society as a good and law-abiding citizen. The Supreme Court in the case of T. K. Gopal v.
State of Karnataka AIR 2000 SC 1669(1674) stated that- the law requires that a criminal
should be punished, and the punishment prescribed must be meted out to him, but at the same
time, reform of the criminal through various processes, despite he has committed a crime,
should entitle him all the basic rights, human dignity, and human sympathy.
Proceedings before a court of law are cither penal or remedial. In penal proceedings the law
aims to secure the punishment of the defendant. In remedial proceedings, on the oilier hand,
the idea of punishment is entirely absent.
It is enforced by specific performance of the contract and actions for res-titution. All criminal
proceedings are penal; but the converse is not true, for there are civil proceedings which are
merely penal and there are civil proceedings which are merely remedial.
4. Primary and Secondary rights
Ans: In legal systems worldwide, the concepts of primary and secondary rights serve as
fundamental pillars upon which justice, accountability, and societal order rest. These rights,
although distinct in their nature and function, collectively form the framework through
which individuals navigate the complexities of law and governance. In this essay, we delve
into the nuanced understanding of primary and secondary rights, their interplay within legal
systems, and their profound implications for individuals and society at large.
Primary Rights:
At the core of any legal system lie primary rights, the foundational principles that embody
the essence of human dignity, autonomy, and justice. These rights are inherent, inalienable,
and universally recognized as essential to the well-being and freedom of individuals.
Primary rights encompass a spectrum of liberties, including but not limited to the right to
life, liberty, property, equality before the law, freedom of expression, and due process.
The recognition and protection of primary rights serve as the bedrock of modern
democracies, ensuring that individuals are shielded from arbitrary state action and
empowered to lead dignified lives. Embedded within constitutions, international treaties,
and customary law, primary rights constitute the moral and legal compass that guides the
actions of governments, institutions, and individuals alike.
Secondary Rights:
While primary rights establish the overarching principles of justice and fairness, the
realization of these rights often necessitates the existence of secondary rights. Secondary
rights, also known as remedial or procedural rights, are mechanisms through which
individuals seek enforcement, redress, or protection of their primary rights. These rights
arise as a consequence of the violation, infringement, or exercise of primary rights and
serve to rectify injustices, mitigate harms, and restore balance within legal relationships.
Examples of secondary rights include the right to a fair trial, the right to seek compensation
for damages, the right to access to legal representation, and the right to petition for
government action. Unlike primary rights, which are universally applicable, secondary
rights are context-specific and vary across legal jurisdictions, reflecting the diverse norms,
values, and priorities of different societies.
5. Explain in brief the different sources of law.
Ans : SOURCES OF LAW
• Legislation
• Precedent
• Custom
Sources of Law:
The common sources of law are codified laws, judicial precedents, customs, juristic writings,
expert opinions, morality, and equity. With the growing popularity of the idea of
constitutionalism, legislations and precedents occupy the center position amongst all the
various sources of law. Let us analyze the sources of law in the article.
Meaning
The meaning of the term “sources of law” differs from writer to writer. The positivists use the
term to denote the sovereign or the State who makes and enforces the laws. The historical
school uses the term to refer to the origins of law. Others use it to indicate the causes or subject
matter of law.
Prof. Fuller, in his “Anatomy of the Law”, states that a judge interprets and applies certain
rules to decide upon a case. Such rules are obtained from various places which are known as
“sources”. He further goes on to give examples of the common sources of law such as codified
laws, judicial precedents, customs, juristic writings, expert opinions, morality, and equity.
Holland has defined the term to mean the sources of the knowledge regarding law.
Classification
There exists no definite classification of the sources of law. Different thinkers and jurists have
given their own classifications according to their own understanding of the meaning of the
term.
Salmond’s Classification
According to Salmond, there are two main sources of law- formal and material. Formal
sources are those from which law derives its validity and force, that is, the will of the State
which is expressed through statutes and judicial decisions. He sub-divided the material sources
into legal sources and historical sources. Legal sources comprise of legislations, precedent,
custom, agreement and professional opinion. They are authoritative in nature and origin and
are followed by the courts as a matter of right. On the other hand, historical sources are those
which are originally found in an unauthoritative form and are subsequently admitted and
converted into legal principles. For instance, precedents are a material source of law. However,
domestic precedents are legal source whereas foreign precedents are historical source.
Salmond’s classification of the sources into formal and material sources is found to be
unsatisfactory by critics. The editor for the twelfth edition of Salmond’s ‘Jurisprudence’ has
classified the sources directly into legal and historical.
Legislation as a source of law
Legislation means the process of lawmaking. Legis means law and Latum mean “making”,
and it means lawmaking. According to Austin, it means the making of law by a supreme or a
sovereign authority which must be followed by people of every stratum of the society.
Salmond defines Legislation as the process of lawmaking by a competent and able authority.
Legislation is the process of lawmaking where a competent authority is given the task of
drafting and enacting the law in a state. It is also said to be a strict concept of lawmaking
because there is only one body which is entrusted with the work of lawmaking and also there
is no scope of any alteration as such because of codified and watertight laws which leave a
very minuscule range of the amendment.
Definition of Legislation
According to Salmond: “Legislation is that source of law which comprises in the assertion of
lawful standards by a competent specialist.”
According to Austin: “Legislation is the command of the sovereign or the superior authority
which must be followed by the common masses backed by sanctions”.
According to Gray: “Legislation implies the formal expression of the administrative organs of
the general public.”
According to Positivist School: “A run of the mill law is a rule and legislation is the typical
source and form of lawmaking.” Most examples of this school don’t affirm that the courts
additionally can figure law. They don’t concede the case of custom as a wellspring of law.
Consequently, they view just legislation as the form of law.
According to Historical School: “The legislation is the least innovative of the forms of law.
The authoritative motivation behind the legislation is to give the better framework and
increasingly viable the custom which is unexpectedly created by the general population.”
Historical School usually do not perceive the legislation as a form of law.
Types of Legislation
Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give,
to authorize, to allow, to proclaim, to confine and to annul. Therefore, in enacting any
legislation and the rule of law, the welfare of the citizens must be kept in mind and therefore,
it is must be adopted in the best interests of the citizens.
Some different types of legislation are as follows.
Supreme Legislation
The Supreme legislation is the legislation adopted by the sovereign intensity of the state. In
this manner, some other authorities which are the organ of the state cannot control or check it.
It is considered incomparable as well as lawfully powerful. An established piece of this rule
can be found in Dicey’s book, ‘The Law of the Constitution ‘.
There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent.

Even though there are different constitutional amendments upon its capacity, it is not subject
to any other administrative authorities inside the state. Therefore, the sovereign jurisdiction of
the state can’t be revoked, cancelled or constrained by some other authoritative organ of the
state.
Subordinate Legislation
Subordinate legislation will be legislation by some other authority than the Supreme specialist
in the state. It is made under the powers designated by the Supreme authority. Such legislation
owes its reality, legitimacy, and continuation to the Supreme expert. It can be cancelled and
abrogated anytime by the power of the sovereign authority and therefore, it must offer an
approach to sovereign legislation. Subordinate legislation is liable to parliamentary control.
Five unique types of subordinate legislation can be distinguished. These are as follows.
Colonial Legislation
The nations which are not autonomous and are under the control of some other state have no
Supreme capacity to make law. Such countries can be in different classes such as colonies,
domains, secured or trust regions and so forth. The laws made by them are subject to the
Supreme legislation of the state under whose control they are. Therefore, it is subordinate
legislation.
England has had numerous colonies and territories. The laws made by them for the
selfgovernment are subject to modification, nullification, or supersession by the legislation of
the British Parliament. As the colonies are free, accomplished freedom and practically all the
British domains have an unlimited power for legislation, hence sooner rather than later, we
might have this class of subordinate legislation no more in existence.
Executive Legislation
At the point when legislative powers are delegated by the designated official to an executive,
it is called executive legislation. Even though the significant capacity of the official is to
execute the laws and carry on the organization, he/she is continuously dependent on some
subordinate enactment powers. Today, for all intents and purposes of each law sanctioned by
the lawmaking body contains assignment statements giving law-making powers by the official
to the executive to enhance the statutory arrangements.
Judicial Legislation
Powers delegated to the judicial system to make and implement their own laws to maintain
transparency in the judicial system of the country. This will also ensure that there is no
involvement of any other organ of the government in the governance of the judicial system of
the state.
Municipal Legislation
Municipal bodies are offered powers to make byelaws concerning their neighborhood matters.
Byelaw made by a neighborhood body works inside its individual area. In India, such
municipal bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so on.
There is a move for allowing extensive powers to Panchayats. Along these lines, there is a
plausibility of extension of this sort of subordinate enactment in our nation. Balwant Rai
committee appointed by the Parliament gave some parliamentary reforms needed in the
Panchayat system of the country. The recommendations were later incorporated in the
Constitution by 73rd Amendment.
Autonomous Legislation
At the point when the Supreme authority gives powers upon a gathering of people to
administer on the issues depended to them as a gathering, the law made by the last is known
as the autonomous law and the body is known as a self-ruling body. A railway is an
independent body. It makes byelaws for the guideline of its organization, and so on. A college
is likewise a self-governing body. Even some universities in India have been granted the status
of autonomous bodies.
Delegated Legislation
Delegated (subordinate or subsidiary) Legislation alludes to those laws made by people or

bodies to whom parliament has delegated law-making powers.
Where Acts are made by Parliament, a Principal Act may cause arrangement for Subsidiary
Legislation to be made and will indicate who can make laws as such under that Act. Delegated
Legislation can just exist in connection to an empowering or parent Act.
Delegated Legislation contains the numerous regulatory subtleties essential to guarantee that
the arrangements of the Act will work effectively. It might be directed by Government
Departments, Local Councils or Courts.
Guidelines and Statutory Rules are the most widely recognized types of Delegated Legislation.
They are made by the Executive or a Minister which apply to the overall public. By-laws, and
occasionally Ordinances are made by a Local Government Authority which also applies to the
general population who live around there. Principle and Parent Act regularly depict
methodology to be followed in Courts if there is any flaw in a delegated law.
Advantages of Legislation as a Source of Law
Verifiably additionally the legislation has dependably been perceived as a significant

wellspring of law as contrasted and different sources. There are two apparent explanations
behind the legislation is viewed as a standout amongst the most significant sources of law.
Right off the bat, it includes setting down of legitimate principles by the lawmaking bodies
which the State perceives as law.
Besides, it has the power and authority of the State. It is hence said by Dias and Hughes that
conscious law-production by a legitimate power, i.e., the State is called ‘legislation’ which
gave that sovereign is correctly perceived as the supreme power by the courts. Relative Merit
of Legislation over Precedent and customs have been discussed below.
Some main advantages of legislation are as follows:

i. Abrogative Power—It can change or annul old law; which control isn’t controlled by
different sources.
ii. Effectiveness—It separates the elements of making law and overseeing it between the
Legislature and the legal executive.
iii. Declaration — it gives that principles of law will be known before they are authorized.
iv. Reliance on Accidental Legislation — Legislation is independent and emerges out of

as the authoritative source of law it need not hold up until the original case of
legislation.
v. Unrivalled in Form — It is predominant in structure, brief, clear, effectively available,

and understandable as against case law, which is an increase of sense in a considerable
amount of pointless issue.
Demerits of Legislation
There is no source of law which is perfect and totally complete in its form and sense, some
lacunas and loopholes could be easily found in every source of law which is as follows in the
case of legislation.
Unbending nature—Law in the legislation is inflexible though the law in the precedents is
versatile and adaptable.
In view of Hypothesis — Legislation, for the most part, continues speculative certainties, by
considering the existing environment and surrounding in which the established law is
frequently observed to be blemished in its application to the mind-boggling issues emerging
in genuine life though piece-scratches develop out of the commonsense exigencies and
convenience.
An excessive amount of Importance to the Wordings—Legislation appends a lot of
significance to its wordings. Thus, if the articulation is faulty, the law gets effectively turned.
In the precedents, the wording matters close to nothing as there is a genuine introduction which
performs separate checks on the applicability of precedent as a source of law. Same goes with
the customary law as well.
Legislation is therefore regarded as the most important source of law in the prevalent times.
Hence it is the codified form of law which is commanded by the sovereign to the common
masses, and it becomes a predicament situation to regard legislation as the authoritative source
of law.
Legislation is one of the foremost and most important sources of law in today’s world. Most
countries in today’s world regard legislation as an essential source of law and follow this
system of lawmaking. Although some lacunae and loopholes are there which exists in the
present form but then too the difficulties such faced are relatively less than that faced from the
other sources of law viz. custom and precedent as legislation as a source of law tries to bring
uniformity by avoiding the ambiguity.
Precedent as a source of law
Every developed legal system possesses a judicial organ. The main function of the judicial
organ is to adjudicate the rights and obligations of the citizens. In the beginning, in this
adjudication, the courts are guided by customs and their own sense of justice. As society
progresses, legislation becomes the main source of law and the judges decide cases according
to it. Even at this stage, the judges perform some creative function. In the cases of the first
impression, in the matters of interpretation, or in filling up any lacuna in the law made by
legislation the judges, to some extent, depend on their sense of right and wrong and in doing
so, they adopt the law to the changed conditions.
Inductive and Deductive Methods
In the inductive method, there is a great reliance placed upon the decisions of the judges.
Before deciding a case, the judges investigate previously decided cases of a similar nature by
their own court or by the superior court. From cases, they deduce general rules, and apply
them on the cases before them and decide accordingly. This is known as Inductive method.
In the deductive method, there is a great reliance placed legislatures and enacted statues. In
such a system, the cases are decided on the basis the enacted legislature and statue that are
codified, and the judges decide cases based on these codes and not based on previously decided
cases. This method is called the Deductive method.
Authority of Previously Decided Cases
In almost all legal systems, the judges take guidance from the previous decisions on the point
and rely upon them. But the authority of such decisions is not the same in all the legal systems.
In most of the countries including India, acquire their knowledge of the law through decisions
of higher tribunals than from anything else. Such decisions are compiled and published in
reports. These reports are valuable from the legal literature perspective. These decisions are
very efficient in deciding cases of subsequent cases of similar nature. They are called judicial
precedents or precedents.
Definition
In general English, the term precedent means, ‘a previous instance or case which is, or may
be taken as an example of rule for subsequent cases, or by which some similar act or
circumstances may be supported or justified.’
According to Gray, ‘precedent covers everything said or done, which furnishes a rule for
subsequent practice.’
According to Keeton, ‘a judicial precedent is judicial to which authority has in some measure
been attached.’
According to Salmond, ‘in a loose sense, it includes merely reported case law which may be
cited & followed by courts.’
In a strict sense, that case law which not only has a great binding authority but must also be
followed.
According to Bentham precedents are ‘Judge made Law.’
According to Austin precedents are ‘Judiciary’s Law.’

In general, in the judicial field, it means the guidance or authority of past decisions for future
cases. Only such decisions as lay down some new rule or principle are called judicial
precedents. The application of such judicial decisions is governed by different principles in
different legal systems.
These principles are called ‘Doctrine of Precedent’. For this case to be held, first such
precedents must be reported, maybe cited and may probably be followed by courts. Secondly,
the precedent under certain circumstances must be followed.
Thus, it can be inferred that precedents are:
• Guidance or authority of past decisions for future cases.
• Precedents must be reported, maybe cited and may probably be followed by courts.
• Precedents must have opinio-juris.
• These must be followed widely for a long time and must not violate any existing statue
law.
Nature of Precedents
They must be purely constitutive and not abrogative at all. This means that a judicial decision
can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the
judges to follow the same. They cannot substitute their opinions for the established rule of
law. The function is limited to supplying the vacancies of the legal systems, filling up with
new law the gaps that exist.
Types of Precedents
Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent or other legal writing that is
related to the case at hand but is not a binding precedent on the court under common law legal
systems such as English law. However, a persuasive authority may guide the judge in making
the decision in the instant case. Persuasive precedent may come from several sources such as
lower courts, “horizontal” courts, foreign courts, statements made in dicta, treatises or law
reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding but
case law is considered by the courts.
Lower Courts
A lower court’s opinion may be considered as persuasive authority if the judge believes they
have applied the correct legal principle and reasoning.
Higher Courts in other Circuits
A court may consider the ruling of a higher court that is not binding. For example, a district
court in the United States First Circuit could consider a ruling made by the United States Court
of
Appeals for the Ninth Circuit as persuasive authority.
Horizontal Courts
Courts may consider rulings made in other courts that are of equivalent authority in the legal
system. For example, an appellate court for one district could consider a ruling issued by an
appeals court in another district.
Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though
not binding, will often be persuasive to lower courts.
The obiter dicta is usually, as its translation “other things said”, but due to the high number of
judges and several personal decisions, it is often hard to distinguish from the ratio decidendi
(reason for the decision). For this reason, the obiter dicta may usually be taken into
consideration.
A Dissenting judgment
A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the
next case can decide to follow the dissenting judge’s obiter and rationale. The judge can only
opt to overturn the holding of a court lower or equivalent in the hierarchy, however. A district
court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the
case at hand.
Treatises, Restatements, Law Review Articles
Courts may consider the writings of eminent legal scholars in treatises, restatements of the
law, and law reviews. The extent to which judges find these types of writings will vary widely
with elements such as the reputation of the author and the relevance of the argument.
Courts in other countries
An English court might cite judgments from countries that share the English common law
tradition. These include other commonwealth states (for example Canada, Australia, or New
Zealand) and, to some extent, the United States.
It is controversial whether it is appropriate for a U.S. court to consider foreign law or

precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the
majority cited the fact that the European Union forbid death penalty as part of their reasoning,
while Chief Justice
Rehnquist denounced the “Court’s decision to place weight on foreign laws.” The House of
Representatives passed a nonbinding resolution criticizing the citing of foreign law and
“reaffirming American independence.”
Binding precedents
In law, a binding precedent (also mandatory precedent or binding authority) is a precedent

which must be followed by all lower courts under common law legal systems. In English law,
it is usually created by the decision of a higher court, such as the Supreme Court of the United
Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law
and pluralist systems, as under Scots law, precedent is not binding but case law is considered
by the courts.
Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand
by things decided. It ensures certainty and consistency in the application of the law. Existing
binding precedents from past cases are applied in principle to new situations by analogy.
There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts
needs to be accepted, and an efficient system of law reporting. ‘A balance must be struck
between the need on one side for the legal certainty resulting from the binding effect of
previous decisions, and on the other side the avoidance of undue restriction on the proper
development of the law.
Binding Precedent in England
Judges are bound by the law of binding precedents in England and Wales and other common
law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and
many countries throughout the world, particularly in mainland Europe, civil law means that
judges take case law into account in a similar way but are not obliged to do so and are required
to consider the precedent in terms of principle. Their fellow judges’ decisions may be
persuasive but are not binding.
Under the English legal system, judges are not necessarily entitled to make their own decisions
about the development or interpretations of the law. They may be bound by a decision reached
in a previous case. Two facts are crucial to determining whether a precedent is binding:
The position in the court hierarchy of the court which decided the precedent, relative to the
position in the court trying the current case.
Whether the facts of the current case come within in the scope the principle of law in previous
decisions.
Stare Decisis
Stare decisis is the legal principle by which judges are obliged to respect the precedents
established by prior decisions. The words originate from the phrasing of the principle in the
Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the
undisturbed.” In a legal context, this is understood to mean that courts should generally abide
by precedents and not disturb settled matters.
This doctrine is basically a requirement that a Court must follow the rules established by a
Court above it. The doctrine that holdings have binding precedence value is not valid within
most civil law jurisdictions as it is generally understood that this principle interferes with the
right of judges to interpret law and the right of the legislature to make law. Most such systems,
however, recognize the concept of jurisprudence constante, which argues that even though
judges are independent, they should judge in a predictable and non-chaotic manner. Therefore,
judges’ right to interpret law does not preclude the adoption of a small number of selected
binding case laws.
Authority of Precedents
The authority of a decision as a precedent lies in its Ratio Decidendi.
Ratio Decidendi and Obiter Dictum
There are cases which involve questions which admit of being answered on principles. Such
principles are deduced by way of abstraction of the material facts of the case eliminating the
immaterial elements. The principle that comes out because of such case is not applicable only
to that case, but to cases also which are like the decided case in their essential features. This
principle is called Ratio Decidendi. The issues which need the determination of no general
principles are answered on the circumstances of the case and lay down no principles of general
application. These are called Obiter Dictum.
It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding
effect of a Precedent. But it is for the judge to determine the Ratio Decidendi of the decision
and to apply it on the case which he is going to decide. This gives an opportunity to him to
mold the law according to the changed conditions by laying emphasis on one or the other
point.
Merits of The Doctrine of Precedents
It shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone have
supported the doctrine on this ground. The say that there are always some reasons behind these
opinions, we may or may not understand them.
Precedents are based on customs, and therefore, they should be followed. Courts follow them
because these judicial decisions are the principal and most authoritative evidence that can be
given of the existence of such a custom as shall form a part of the common law.
As a matter of great convenience, it is necessary that a question once decided should be settled
and should not be subject to re-argument in every case in which it arises. It will save the labor
of the judges and the lawyers.
Precedents bring certainty in the law. If the courts do not follow precedents and the judges
start deciding and determining issues every time afresh without having regard to the previous
decisions on the point, the law would become the most uncertain.
Precedents bring flexibility to law. Judges in giving their decisions are influenced by social,
economic and many other values of their age. They mold and shape the law according to the
changed conditions and thus bring flexibility to law.
Precedents are Judge made law. Therefore, they are more practical. They are based on cases.
It is not like statue law which is based on a priori theory. The law develops through precedents
according to actual cases.
Precedents bring scientific development to law. In a case, Baron Parke observed ‘It appears to
me to be great importance to keep the principle of decision steadily in view, not merely for the
determination of the particular case, but for the interest of law as a science.’
Precedents guide judges and consequently, they are prevented from committing errors which
they would have committed in the absence of precedents. Following precedents, judges are
prevented from any prejudice and partially because precedents are binding on them. By
deciding cases on established principles, the confidence of the people on the judiciary is
strengthened.
As a matter of policy, decisions, once made on principal should not be departed from in
ordinary course.
Demerits of The Doctrine of Precedents
There is always a possibility of overlooking authorities. The vastly increasing number of cases
has an overwhelming effect on the judge and the lawyer. It is difficult to trace out all the
relevant authorities on the very point.
Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on
the horns of a dilemma. The courts faced with what an English judge called “complete fog of
authorities.”
A great demerit of the doctrine of precedent is that the development of the law depends on the
incidents of litigation. Sometimes, the most important points may remain unadjudicated
because nobody brought an action upon them.
A very grave demerit or rather an anomaly of the doctrine of precedent is that sometimes it is
the extremely erroneous decision is established as law due to not being brought before a
superior court.
Custom as a source of law
Customs are the earliest sources of law and form the basis of the English Common Law system
as we see it today. They can be described as cultural practices which have become definite and
backed by obligation or sanction just by virtue of widespread practice and continue presence.
Definitions
John Salmond
“Custom is the embodiment of those principles which have commended themselves to the
national conscience as principles of justice and public utility.”
For Salmond, a valid custom has absolute legal authority which as the force of law. He divides
Customs into two:
General Custom – A general custom has the force of law throughout the territory of a state.
For example, the Common Law in England.
Local Custom – The local custom are those which operate have the force of law in a particular
locality. The authority of a local custom is higher than that of general custom.
C.K. Allen
C.K. Allen defines custom as “legal and social phenomenon growing up by forces inherent in
society—forces partly of reason and necessity, and partly of suggestion and imitation.”
J.L. Austin
“Custom is a rule of conduct which the governed observe spontaneous and not in pursuance
of law settled by a political superior.”
Austin’s ideas were often seen in contravention to customary law because for him, the political
superior was the only source of law and customs were not ‘real law’. They needed the assent
and command of the Sovereign to be considered law.
Robert Keeton
“Customary law may be defined as those rules of human action established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by
the courts and applied as source of law, because they are generally followed by the political
society as a whole, or by some part of it.”
Origin of Customs
In primitive societies, there was no external authority over people, yet people organized
themselves in cohesive groups with a mechanism for fairness and liberty.
People developed rules and regulations through spontaneous reaction to their circumstances
as well as a coordinated conscious decision to arrive at them.
Eventually, people started recognizing traditions, practices, rituals which were prevalent in a
certain territory or group and saw how they formed a systematized approach to social
regulation.
In Britain, Jurists and legislators started studying these patterns, recording their prevalence,
usage and applicability. These came to be known as customs, which were then formalized and
put into legislation in the Common Law of England.
There are two philosophers with alternate views as to how customs originate.
Sir Henry Maine
According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or

judgments.” Themistes were judicial awards which were dictated to the King by the Greek
goddess of justice. He explained, “Themistes, Themises, the plural of Themis, are the awards
themselves, divinely dictated to the judges.
He described the development in distinct steps. These are:
i. Law by rulers under divine inspiration
At the first stage, law was given by rulers who sought divine sanction for their commands.
They were believed to be messengers of God, laying out the law for the people.
ii. Developing of Customs
Gradually, as people get into the habit of following the dictates of their rulers, they develop
into customary law, and becomes a part of people’s daily living.
iii. Knowledge of law in the hands of priests
The knowledge of customs and practises is then studied by a minority, primarily religious
people. This is possible due to the weakening of the power of the rulers over people. Priests
study customs, recognize patterns, understand their relevance, and formalize customs.
iv. 4. Codification
The last and final stage is that of codifying these laws. Priests study customs meticulously
and put it on paper. This code is then promoted and spread to newer areas and territories.
T. Holland
According to Holland, “custom is a generally observed course of conduct”.
Holland says that custom originated in the conscious choice by the people of the more
convenient of the two acts.
For Holland, customs grow through imitation. In early political societies the king or the head
of the society did not make laws but administered justice according to the popular notions of
right and wrong, whichever were enshrined in the course of conduct pursued by people- in
general. What was accepted by the generality of the people and embodied in their customs
was deemed to be right and which was disapproved by them or not embodied in their customs
was deemed to be wrong.
Types of Customs
There are two broad categories into which customs can be divided. These are customs without
binding obligation and customs with legally binding obligations.
Customs without binding obligation
These customs are not enforceable by law but are still prevalent in society and have societal
sanctions attached to them.
For example, every society has some customs about how to dress, how to address elders or
how to conduct marriages etc. These are not legally binding but can still have powerful
sanctions attached to them. For example, if a person comes to a funeral wearing colorful
clothes, he will be ostracized and alienated by others around him.
These customs, although not binding, hold tremendous importance in society and must be
followed uniformly for efficient functioning of society.
Every one of these customs are pursued because of the fear that non-recognition of such
customs may lead them to be socially outcasted. Such customs are non-authoritative as in they
are not mandatory to pursue. Individuals follow them due to the social pressure of society. At
the point when a custom of this sort is abused, society typically responds by demonstrating
social dismay or ostracization; however, it has no sanction in the true sense of the term. Such
customs can be called as ‘Social Customs’.
Customs with binding obligations
In this classification those customs are discussed which in an objective and stringent sense are
viewed as the obligations and commitments of men. Such customs may direct the commitment
of marriage and the upbringing of children, the transmission of property etc.
Such customs do not relate to the circle of social conventions, outward propriety, or style;
rather, they are worried about the genuine business of society, the work that must be practiced
in request to verify and ensure necessary conditions for community living.
Customs under this category have sanctions which are more stringent than the previous
category. If these customs gain widespread acceptance, they acquire legal character. On
violation of these customs, adequate penalty is incurred by the violator as per the statute that
governs the custom.
These can be further divided into Legal Customs and Conventional customs.
Legal Customs
The sanction of a legal custom is certain and absolute. It is negative in its operation, in the
sense that, if the custom is not followed, certain desired consequences would not take place.
For example, if you do not follow the custom of marriage properly, that marriage will be
considered void and any children born out of that marriage will be considered illegitimate.
Legal custom is operative per se regardless of any agreement of participant parties contrary to
the custom. They are unconditional and absolute in their function and take up the form of law.
They are obligatory rules of conduct on not based on faith or convention.
According to Salmond, Legal Customs have legal obligation or proprio vigor. He divides legal
customs further into General and Local Customs which have been discussed earlier.
Conventional Customs
According to Salmond, ‘A conventional custom is one whose authority is conditional on its

acceptance and incorporation in agreement between the parties to be bound by it.’
A conventional custom or usage is a practice which comes into practice due to it being
followed for a long period of time and arising out of a contract between the parties; it does not
have any legal character. Thus, a usage or conventional custom is an established norm which
is legally enforceable, not because of any legal authority independently possessed by it, but
because it has been expressly or impliedly incorporated in a contract between the parties
concerned.
Conventional custom may, again, be divided into two types—General Conventional.
Customs and Local Conventional Customs. General Conventional Customs are extensively
practiced throughout a particular territory, whereas Local Conventional Customs are limited
to a particular place or to a particular trade or transaction.
Requisites of a Valid Custom
i. Reasonability
A custom must be in conformity with basic morality, the prevailing understanding of justice,
health and public policy. If it is not reasonable in its origin or practice, it cannot be considered
a valid custom. For example, Sati was an accepted custom once, but with the modern moral
understanding, it is reprehensible, and therefore it cannot be considered a custom today.
This, however, does not mean that every custom must be perfect in its morality or ethical
concerns, or contain eternal wisdom, it just needs to be relevant to contemporary times, useful
and capable of being legislated on.
ii. Conformity with Statute Law
No custom can be in contravention to the existing law of the land. Any practice, however
widespread and accepted, if found in violation of any statute of a said territory cannot be
considered a custom.
iii. Certainty
It must be clear and unambiguous as to what the custom is and how it is practiced. A custom
can only hold up in a court of law when it is not indefinite or uncertain. It needs to be absolute
and objective in theory and in action.
iv. Consistency
A custom must be consistent with the general principles of Law which form the basis of every
law or statue which exists. These principles form the basis of ideas like Justice, fairness and
liberty, and every custom must be in consonance with these.
v. Antiquity
It is necessary for the custom to have been followed for time immemorial. The practice must
be so ingrained in society, that legislating it seems like the only natural step. Recent or modern
practices cannot be custom until they become firmly established in society.
vi. Continuity
A custom must not be interrupted, or its practice must not be sparse. It needs to be continuing
for time immemorial without any interruption.
vii. Must be peaceful in its practice.
Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered
a custom.
vi. Must not be opposed to Public Policy.
Whatever the public policy may be of the state the custom is operating in, must be conformed
to.
ix. Must be General or Universal.
According to Carter, “Custom is effectual only when it is universal or nearly so. In the absence
of unanimity of opinion, custom becomes powerless, or rather does not exist.”
6. Customs
Ans : Custom as a source of law
Customs are the earliest sources of law and form the basis of the English Common Law system
as we see it today. They can be described as cultural practices which have become definite and
backed by obligation or sanction just by virtue of widespread practice and continue presence.
Definitions
John Salmond
“Custom is the embodiment of those principles which have commended themselves to the
national conscience as principles of justice and public utility.”
Customs into two:
General Custom – A general custom has the force of law throughout the territory of a state.
For example, the Common Law in England.
C.K. Allen
C.K. Allen defines custom as “legal and social phenomenon growing up by forces inherent in
society—forces partly of reason and necessity, and partly of suggestion and imitation.”
J.L. Austin
“Custom is a rule of conduct which the governed observe spontaneous and not in pursuance
of law settled by a political superior.”
Austin’s ideas were often seen in contravention to customary law because for him, the political
superior was the only source of law and customs were not ‘real law’. They needed the assent
and command of the Sovereign to be considered law.
Robert Keeton
“Customary law may be defined as those rules of human action established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by
the courts and applied as source of law, because they are generally followed by the political
society as a whole, or by some part of it.”
Origin of Customs
In primitive societies, there was no external authority over people, yet people organized
themselves in cohesive groups with a mechanism for fairness and liberty.
People developed rules and regulations through spontaneous reaction to their circumstances
as well as a coordinated conscious decision to arrive at them.
Eventually, people started recognizing traditions, practices, rituals which were prevalent in a
certain territory or group and saw how they formed a systematized approach to social
regulation.
In Britain, Jurists and legislators started studying these patterns, recording their prevalence,
usage and applicability. These came to be known as customs, which were then formalized and
put into legislation in the Common Law of England.
There are two philosophers with alternate views as to how customs originate.
Sir Henry Maine
According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or

judgments.” Themistes were judicial awards which were dictated to the King by the Greek
goddess of justice. He explained, “Themistes, Themises, the plural of Themis, are the awards
themselves, divinely dictated to the judges.
He described the development in distinct steps. These are:
v. Law by rulers under divine inspiration
At the first stage, law was given by rulers who sought divine sanction for their commands.
They were believed to be messengers of God, laying out the law for the people.
vi. Developing of Customs
Gradually, as people get into the habit of following the dictates of their rulers, they develop
into customary law, and becomes a part of people’s daily living.
vii. Knowledge of law in the hands of priests
The knowledge of customs and practises is then studied by a minority, primarily religious
people. This is possible due to the weakening of the power of the rulers over people. Priests
study customs, recognize patterns, understand their relevance, and formalize customs.
viii. 4. Codification
The last and final stage is that of codifying these laws. Priests study customs meticulously
and put it on paper. This code is then promoted and spread to newer areas and territories.
T. Holland
According to Holland, “custom is a generally observed course of conduct”.
Holland says that custom originated in the conscious choice by the people of the more
convenient of the two acts.
For Holland, customs grow through imitation. In early political societies the king or the head
of the society did not make laws but administered justice according to the popular notions of
right and wrong, whichever were enshrined in the course of conduct pursued by people- in
general. What was accepted by the generality of the people and embodied in their customs
was deemed to be right and which was disapproved by them or not embodied in their customs
was deemed to be wrong.
Types of Customs
For example, every society has some customs about how to dress, how to address elders or
how to conduct marriages etc. These are not legally binding but can still have powerful
sanctions attached to them. For example, if a person comes to a funeral wearing colorful
clothes, he will be ostracized and alienated by others around him.
These customs, although not binding, hold tremendous importance in society and must be
followed uniformly for efficient functioning of society.
Every one of these customs are pursued because of the fear that non-recognition of such
customs may lead them to be socially outcasted. Such customs are non-authoritative as in they
are not mandatory to pursue. Individuals follow them due to the social pressure of society. At
the point when a custom of this sort is abused, society typically responds by demonstrating
social dismay or ostracization; however, it has no sanction in the true sense of the term. Such
customs can be called as ‘Social Customs’.
Customs with binding obligations
In this classification those customs are discussed which in an objective and stringent sense are
viewed as the obligations and commitments of men. Such customs may direct the commitment
of marriage and the upbringing of children, the transmission of property etc.
Such customs do not relate to the circle of social conventions, outward propriety, or style;
rather, they are worried about the genuine business of society, the work that must be practiced
in request to verify and ensure necessary conditions for community living.
Customs under this category have sanctions which are more stringent than the previous
category. If these customs gain widespread acceptance, they acquire legal character. On
violation of these customs, adequate penalty is incurred by the violator as per the statute that
governs the custom.
These can be further divided into Legal Customs and Conventional customs.
Legal Customs
The sanction of a legal custom is certain and absolute. It is negative in its operation, in the
sense that, if the custom is not followed, certain desired consequences would not take place.
For example, if you do not follow the custom of marriage properly, that marriage will be
considered void and any children born out of that marriage will be considered illegitimate.
Legal custom is operative per se regardless of any agreement of participant parties contrary to
the custom. They are unconditional and absolute in their function and take up the form of law.
According to Salmond, Legal Customs have legal obligation or proprio vigor. He divides legal
customs further into General and Local Customs which have been discussed earlier.

A conventional custom or usage is a practice which comes into practice due to it being
followed for a long period of time and arising out of a contract between the parties; it does not
have any legal character. Thus, a usage or conventional custom is an established norm which
is legally enforceable, not because of any legal authority independently possessed by it, but
because it has been expressly or impliedly incorporated in a contract between the parties
concerned.
Customs and Local Conventional Customs. General Conventional Customs are extensively
practiced throughout a particular territory, whereas Local Conventional Customs are limited
to a particular place or to a particular trade or transaction.
Requisites of a Valid Custom
i. Reasonability
A custom must be in conformity with basic morality, the prevailing understanding of justice,
health and public policy. If it is not reasonable in its origin or practice, it cannot be considered
a valid custom. For example, Sati was an accepted custom once, but with the modern moral
understanding, it is reprehensible, and therefore it cannot be considered a custom today.
This, however, does not mean that every custom must be perfect in its morality or ethical
concerns, or contain eternal wisdom, it just needs to be relevant to contemporary times, useful
and capable of being legislated on.
ii. Conformity with Statute Law
No custom can be in contravention to the existing law of the land. Any practice, however
widespread and accepted, if found in violation of any statute of a said territory cannot be
considered a custom.
iii. Certainty
It must be clear and unambiguous as to what the custom is and how it is practiced. A custom
can only hold up in a court of law when it is not indefinite or uncertain. It needs to be absolute
and objective in theory and in action.
iv. Consistency
A custom must be consistent with the general principles of Law which form the basis of every
law or statue which exists. These principles form the basis of ideas like Justice, fairness and
liberty, and every custom must be in consonance with these.
v. Antiquity
It is necessary for the custom to have been followed for time immemorial. The practice must
be so ingrained in society, that legislating it seems like the only natural step. Recent or modern
practices cannot be custom until they become firmly established in society.
vi. Continuity
A custom must not be interrupted, or its practice must not be sparse. It needs to be continuing
for time immemorial without any interruption.
viii. Must be peaceful in its practice.
Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered
a custom.
vii. Must not be opposed to Public Policy.
Whatever the public policy may be of the state the custom is operating in, must be conformed
to.
ix. Must be General or Universal.
According to Carter, “Custom is effectual only when it is universal or nearly so. In the absence
of unanimity of opinion, custom becomes powerless, or rather does not exist.”
7. What is a legal right? Discuss briefly the concept of legal right in its wider sense.
Ans: RIGHTS
A right is an interest recognised and protected by a rule of right. It is any interest, respect for
which is a duty, and the disregard of which is a wrong. All that is right or wrong, just or unjust,
is so by reason of its effects upon the interests of mankind, that is to say upon the various
elements of human well-being, such as life, liberty, health, reputation, and the uses of material
objects. If any act is right or just, it is so because and in so far as it promotes some form of
human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially
affected by it. Conduct which has no influence upon the interests of anyone has no significance
either in law or morals. Every wrong, therefore, involves some interest attacked by it, and
every duty involves some interest to which it relates, and for whose protection it exists. The
converse, however, is not true. Every attack upon an interest is not a wrong, either in fact or
in law, nor is respect for every interest a duty, either legal or natural. Many interests exist de
facto and not also de jure; they receive no recognition or protection from any rule of right. The
violation of them is no wrong, and respect for them is no duty. For the interests of men conflict
with each other, and it is impossible for all to receive rightful recognition. The rule of justice
selects some for protection, and the others are rejected. The interests which thus receive
recognition and protection from the rules of right are called rights. Every man who has a right
to any thing has an interest in it also, but he may have an interest without having a right.
Whether his interest amounts to a right depends on whether there exists with respect to it a
duty imposed upon any other person. In other words, a right is an interest the violation of
which is a wrong.
Legal Right
Interest Theory:
Jeremy Bentham (1748-1832) initiated the interest theory. As a utilitarian, he was critical of
the idea of moral rights, but conceded that the rights could be useful in legal systems. Someone
would have a right to something (x), against a second person, if that person had a legal duty
to provide the first person with x. For example, on Bentham’s interest theory, you have a right
to vote if someone is legally required to provide you with the opportunity to vote, and count
your ballot, and so on.
Further, Rudolf Von Ihering stated that legal right is the legally protected interest. He gave
importance to the interest of the people rather than the will of the people. The main objective
is to protect the interests of the people and to avoid the conflict between the individual interest.
Will Theory:
Herbert L.A. Hart (1907-92), a British legal scholar, is credited with developing the will theory
of rights. He cited Kant as inspiring his thinking about the importance of human freedom, or
liberty. Freedom is the most basic right, according to will theory. It is a moral (or natural)
right. All other rights, moral or legal, are specific protected freedoms. Limiting anyone’s
freedom always requires the authorization of others’ rights; and the subjects of rights remain
free to “claim” them or not.
So as per the will theory of rights, rights are an inherent attribute of the human will”. The
purpose of the law is to permit the expression of free will. The subject matter is derived from
the human will.
Rights are defined in the terms of will by Austin, Pollock, and Holland. According to John
Locke,
“the basis of the right is the will of the individual”. According to Puchta the legal rights gives
power to the person over the object which by means of right can be subjected to the will of
the person who is enjoying the right.
Elements of Legal Rights:
In every legal right the five following elements are involved: —
(1) A person in whom it is vested, and who may be distinguished as the owner of the right,
the subject of it, or the person entitled.
(2) A person against whom the right avails, and upon whom the correlative duty lies. He
may be distinguished as the person bound, or as the subject of the duty.
(3) An act or omission which is obligatory on the person bound in favour of the person
entitled. This may be termed the content of the right.
(4) Something to which the act or omission relates, and which may be termed the object
or subject matter of the right.
(5) A title is to say, certain facts or events by reason of which the right has become vested
in its owner.
Thus, if A buys a piece of land from B., A. is the subject or owner of the right so acquired. The
persons bound by the correlative duty are persons in general, for a right of this kind avails
against all the world. The content of the right consists in non-interference with the purchaser's
exclusive use of the land. The object or subject matter of the right is the land. And finally, the
title of the right is the conveyance by which it was acquired from its former owner.
Types of Legal Rights:
1. Perfect and imperfect rights: Perfect right corresponds with perfect duty. Perfect
rights are recognized and enforced by law and an action can be taken against the
wrongdoer by filing a suit in Court of Law for the breach of it. While Imperfect right
corresponds with Imperfect duty, which though recognized by law, but still cannot be
enforced by the law. For example, 'A' advanced loan to 'B'. 'B' is bound to repay that
Loan. 'A' has perfect right to recover loan from 'B' and 'B' has perfect duty to pay the
amount of loan to 'A'. If 'B' failed, then 'A' can file Suit against him in court of law for
recovery of loan. But if it is time-barred loan, for example no suit filed within the
limitation period and 'A' was sleeping over his right for a long time. 'A' can claim for
the same but becomes imperfect right which cannot be enforced by law.
2. Positive and Negative rights: Positive rights have corresponding Positive duty.
Positive rights are therefore realised when some positive act is required to be done by
the person who has the corresponding duty. Thus, the person on whom such duty lies
must do some positive duty. While on the other hand negative rights are those rights
when some negative act by way of omission is required. Negative rights correspond to
negative duty, and the person on whom such negative duty lies shall omit (not to do)
such act.
3. Rights in rem and rights in personam: Rights in rem or jus in rem means a right
against or in respect of a person. Rights in rem are available against the whole world.
Examples: possession and ownership. An individual’s right to possession and
ownership is protected against the whole world.
A right in personam corresponds to a duty which is imposed on determinate persons.
Rights under a contract are rights in personam as the parties to the contract are alone
bound by it.
4. Proprietary and personal rights: Personal right is in respect of person of owner of
right whereas Proprietary right is in respect of property of which the person is an
owner. Proprietary Rights are those, which constitute a man's property or wealth. These
are the rights, which possess some economic or monetary value and constitute the
estate of the
Person. Right to land, debts and Goodwill or patent rights are all Proprietary right.
Personal right includes right to safety, to repetition Personal rights are also important
like Proprietary right. For example - right to reputation. Personal rights do not have
economic value. They relate to person's well-being or status.
5. Rights in re propria and rights in re aliena: Right over one’s own property is known
as rights in re- propria whereas rights over the property of another person is known as
rights in re-aliena. For example: A person has rights in re propria on their own land.
The rights in re- aliena will arise if the rights of the owner over their property becomes
subject to someone else’s right over their property. Rights in re-aliena are also known
as
encumbrances.
6. Principal and accessory rights: The principal right is a basic or main right vested in
Persona under law. They are Vital and important Rights. While accessory right is
incidental or consequential right. They are not essential but are apparent to the more
basic general right.
7. Primary and sanctioning rights: Primary right is basic right. It is an independent

right. For example - right to reputation, if right of reputation is violated then there is
legal remedy in the civil and criminal law. Sanctioning rights are the consequential
rights. They originate for the redressal of some wrong. They come into picture when
some primary right has been violated.
8. Vested and Contingent rights: Vested rights come in existence when an interest in a
property is transferred in favour of a person without specifying the time or a specific
condition. Such interest must vest in the person on happening of an event which is
bound to happen. The interest in the property remains vested in the transferee even
though the right to enjoyment of the property is postponed. Vested interest does not
depend on an uncertain event. It depends on a certain event which must happen. It
creates a present or immediate right though the right to enjoyment is postponed.
Contingent rights come into existence when interest is created in a property in favour
of a person to whom such property is transferred, such interest is dependent on the
happening of a specified uncertain event which may or may not take place. Hence the
transfer of an interest in a property is dependent on a contingent event. This interest in
the property can become vested interest in favour of the person to whom it is
transferred on the happening of the event or when the happening of the specified event
fails or becomes impossible. The creation of interest of the person’s right to enjoyment,
possession or ownership in the property is dependent on happening of a condition
which may or may not take place.
9. Legal and Equitable rights: Legal rights are the rights given by common law Courts
of
England. Common law was based on statute by way of custom, usage. Equitable rights are
the outcome of law of equity given by the court of chancellor, or equity Court based
on principle of natural justice and conscience of Lord Chancellor.
8. Elements of possession.
Ans : Possession, simply put, can be defined as the relationship of an individual with an
object/property. The concept of possession is one of the most complicated concepts in law.
One of the questions which frequently arises is to why is the possession of an individual
protected even though they are not the owners? The answer to this question can be found in
the writings of German philosophers. Kant and Hegel start from freedom. The freedom of the
will, Kant said, is the essence of man. It is an end in itself; it is that which needs no further
explanation, which is absolutely to be respected, and which it is the very end and object of all
government to realize and affirm. Possession is to be protected because a man by taking
possession of an object has brought it within the sphere of his will. He has extended his
personality into or over that object. As Hegel would have said, possession is the objective
realization of free will. And by Kant's postulate, the will of any individual thus manifested is
entitled to absolute respect from every other individual and can only be overcome or set aside
by the universal will, that is, by the state, acting through its organs, the courts.
Another question that arises with regards to possession is whether ‘Possession a fact or a
right’? This question must be taken to mean, by possession and right, what the law means by
those words, and not something else which philosophers or moralists may mean by them. A
legal right is nothing but a permission to exercise certain natural powers, and upon certain
conditions to obtain protection, restitution, or compensation by the aid of the public force. The
word "possession" also denotes a group of facts. Hence, when we say of a person that they
have possession, we affirm directly that all the facts of a certain group are true of them i.e.,
we speak of possession as it exists or the state of being. This is how possession is understood
in the factual sense. The law tends to preserve or protect certain existing set or group of facts.
Therefore, the protection which the law attaches by way of consequence to possession, is truly
a right in a legal sense.
Elements of Possession:
To gain possession, then, a man must stand in a certain physical relation to the object and to
the rest of the world, and must have a certain intent i.e. to say that possession has two
elements.
1. Animus Possidendi/ Domini: Refers to the intention of the individual to hold

on to the object. The intent necessary to constitute possession is the intent
to appropriate to oneself the exclusive use of the thing possessed. It is an
exclusive claim to a material object. It is a purpose of using the thing
oneself and of excluding the interference of other persons. As to this
necessary mental attitude of the possessor there are the following
observations to be made:
(i) The animus sibi habendi is not necessarily a claim of right. It may
be consciously wrongful. The thief has a possession no less real than
that of a true owner. The possessor of a thing is not he who has, or
believes that he has, a right to it, but he who intends to act as if he
had such a right. To possession in good faith the law may and does
allow special benefits which are cut off by fraud, but to possession
as such—the fulfilment of the self-assertive will of the individual
good faith is irrelevant.
(ii) The claim of the possessor must be exclusive. Possession involves
an intent to exclude other persons from the uses of the thing
possessed. A mere intent or claim of unexclusive use cannot amount
to possession of the material thing itself.
(iii) The exclusion, however, need not be absolute. I may possess my
land notwithstanding the fact that some other person, or even the
public at large, possesses a right of way over it. For, subject to this
right of way, my animus possidendi is still a claim of exclusive use.
I intend to exclude all alien interference except such as is justified
by the limited and special right of use vested in others.
(iv) The animus possidendi need not be specific but may be merely
general. It does not necessarily involve any continuous or present
knowledge of the thing possessed or of the possessor's relation to it.
A general intent
with respect to a class of things is sufficient (if coupled with the
necessary physical relation) to confer possession of the individual
objects belonging to that class, even though their individual
existence is unknown. Thus, I possess all the books in my library,
even though I may have forgotten the existence of many of them.
Corpus Possessionis: To constitute possession the animus domini is not in itself sufficient but
must be embodied in a corpus. The claim of the possessor must be effectively realised in the
facts; that is to say, it must be actually and continuously exercised. The will is sufficient only
when manifested in an appropriate environment of fact. Corpus Possessionis can be
understood in two ways- (1) on the relation of the possessor to other persons, (2) on the relation
of the possessor to the thing possessed.
(i) Relation of the possessor to other persons: So far as other

persons are concerned, I am in possession of a thing when
the facts of the case are such as to create a reasonable
expectation that I will not be interfered with in the use of it.
A thing is possessed, when it stands with respect to other persons in such a position
that the possessor, having a reasonable confidence that his claim to it will be
respected, is content to leave it where it is.
(ii) Relation of the possessor to the thing possessed: The
necessary relation between the possessor and the thing
possessed is such as to admit of his making such use of it as
accords with the nature of the thing and of his claim to it.
There must be no barrier between him and it, inconsistent
with the nature of the claim he makes to it. For example: I
have the possession of the house I live in the house because
of my physical power/ control of the house and the fact that
I can use my property in a manner that I choose, excluding
others from any kind of interference. This also means that
when I am not present in my house, I still have it in my
possession because I can return to my house as per my will.
My dog is away from home, but he will probably return. I
have mislaid a book, but it is some- where within my house
and can be found with a little trouble. These things,
therefore, I still possess, though I cannot lay my hands on
them at will.
Types of possession:
(i) Mediate and immediate: The possession thus held by one man through another may be
termed 7nediate, while that which is acquired or retained directly or personally
may be distinguished as immediate or direct. If I go myself to purchase a book, I
acquire direct possession of it; but if I send another person to buy it for me, I
acquire mediate possession of it through them, until they have brought it to me,
when my possession becomes immediate.
Types of mediate possession:
Of mediate possession there are three kinds. The first is that which I acquire through an agent
or servant; through someone who holds solely on my account and claims no interest of his
own. For example: I send my boots to a shoemaker to be repaired or when I allow my servant
to use my tools in his work. In all such cases, though the immediate possession is in the servant
or artisan, the mediate possession is in me; for the immediate possession is held on my account,
and my animus domini is therefore sufficiently realised in the facts.
The second kind of mediate possession is that in which the direct possession is in one who
holds both on my account and on his own, but who recognises my superior right to obtain
from him the direct possession whenever I choose to demand it. It is the case of a borrower,
hirer, or tenant at will. I do not lose possession of a thing because I have lent it to someone
who acknowledges my title to it and is prepared to return it to me on demand, and who in the
meantime holds it and looks after it on my behalf.
The third kind of immediate possession is in a person who claims it for himself until sometime
has elapsed or some condition has been fulfilled, but who acknowledges the title of another
for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary
claim has come to an end : as for example when I lend a chattel to another for a fixed time, or
deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain
possession of the thing, so far as third persons are concerned.
(ii) Concurrent possession: It was a maxim of the civil law that two persons could not be
in possession of the same thing at the same time i.e., Plures eandem rem in solidum
possidere non jaossunt. As a general proposition this is true; for exclusiveness is
of the essence of possession. Two adverse claims of exclusive use cannot both be
effectually realised at the same time. Claims, however, which are not adverse, and
which are not, therefore, mutually destructive, admit of concurrent realisation.
Hence there are several possible cases of duplicate possession.
1. Mediate and immediate possession coexist in respect of the same thing as
already explained.
2. Two or more persons may possess the same thing in common, just as they may
own it in common. This is called compossessio by the civilians.
3. Corporeal and incorporeal possession may coexist in respect of the same
material object, just as corporeal and incorporeal ownership may.
Modes of acquisition of possession:
The modes of acquisition are two in number, namely Taking and Delivery. Taking is the
acquisition of possession without the consent of the previous possessor. The thing taken may
or may not have been already in the possession of someone else, and in either case the taking
of it may be either rightful or wrongful.
Delivery, on the other hand, is the acquisition of possession with the consent and co-operation
of the previous possessor. It is of two kinds: actual and constructive. Actual delivery is the
transfer of immediate possession; it is a physical dealing with the thing as it transfers from the
hands of one person to those of another.
Constructive delivery, on the other hand, is all which is not actual. There are three types of
constructive delivery:
(i) The first is that which the Roman lawyers termed traditio brevi manu. It consists
in the surrender of the mediate possession of a thing to him who is already in
immediate possession of it. If, for example, I lend a book to someone, and
afterwards, while he still retains it, I agree with him to sell it to him, or to make
him a present of it, I can effectively deliver it to him in fulfilment of this sale or
gift, by telling him that he may keep it. It is not necessary for him to go through
the form of handing it back to me and receiving it a second time from my hands.
For he has already the immediate possession of it, and all that is needed for delivery
under the sale or gift is the destruction of the animus through which mediate
possession is still retained by me.
(ii) The second form of constructive delivery is termed as constitutum possessorium
that is to say, an agreement touching possession. This is the converse of traditio
brevi manu.
It is the transfer of mediate possession, while the immediate possession remains
in the transferor. Anything may be effectually delivered by means of an agreement
that the possessor of it shall for the future hold it no longer on his own account but
on account of someone else. No physical dealing with the thing is requisite,
because by the mere agreement mediate possession is acquired by the transferee,
through the immediate possession retained by the transferor and held on the other's
behalf.
(iii) The third form of constructive delivery of possession is known as attornment. This
is the transfer of mediate possession, while the immediate possession remains
outstanding in some third person. For example: I have goods in the warehouse of
A., and sell them to B., I have effectually delivered them to B., so soon as A. has
agreed with B. to hold them for him, and no longer for me. Neither in this nor in
any other case of constructive delivery is any physical dealing with the thing
required, the change in the animus of the persons concerned being adequate.
Possessory Remedies:
The legal remedies provided for the protection of possession even against ownership are called
possessorium or possessory remedies. A wrongful possessor, who is deprived of his possession
even by the owner otherwise than in due process of law, can recover it from him, simply on
the ground of his possession. The true owner, who retakes possession, must first restore it to
the wrong doer and then proceed to recover it based on his ownership in due course of law.
There has been much discussion as to the reasons on which this provisional protection of
possession is based. It would seem probable that the considerations of greatest weight are the
three following:
1. The evils of violent self-help are deemed so serious that it must be discouraged by
taking away all advantages which anyone derives from it. He who helps himself by
force even to that which is his own must restore it even to a thief. The law gives him a
remedy, and with it he must be content. This reason, however, can be allowed as valid
only in a condition of society in which the evils and dangers of forcible self-redress
are much more formidable than they are at the present day.
2. A second reason for the institution of possessory remedies is to be found in the serious
imperfections of the early proprietary remedies. The procedure by which an owner
recovered his property was cumbrous, dilatory, and inefficient. No man, therefore,
could be suffered to procure for himself by violence the advantageous position of
defendant, and to force his adversary by such means to assume the dangerous. and
difficult post of plaintiff. The original position of affairs must first be restored;
possession must first be given to him who had it first; then, and not till then, would the
law consent to discuss the titles of the disputants to the property in question.
3. A third reason for possessory remedies, intricately connected with the second, is the
difficulty of the proof of ownership. It is easy to prove that one has been in possession
of a thing, but difficult (in the absence of any system of registration of title) to prove
that one is the owner of it. Therefore, it was considered unjust that a man should be
allowed by violence to transfer the heavy burden of proof from his own shoulders to
those of his opponent. Every man should bear his own burden. He who takes a thing
by force must restore it to him from whom he has taken it; let him then prove, if he
can, that he is the owner of it; and the law will then give to him what it will not suffer
him to take for himself.
9. Explain the theory of Strict liability. Refer to cases.

Ans: Strict liability is a legal concept that holds a party responsible for their actions or
products, without the plaintiff having to prove negligence or fault. When someone is involved
in ultrahazardous activities such as keeping wild animals, using explosives or making
defective products, then they may be held liable if someone else is injured.
The principle of Strict liability was first laid down in the case of Rylands v. Fletcher (1868)
where the defendants employed independent contractors to construct a reservoir on their land.
The contractors found disused mines when digging but they failed to seal them properly. They
filled the reservoir with water. As a result, water flooded through the mineshafts into the
plaintiff’s mines on the adjoining property. Here, the House of Lords held that any person who
allows a dangerous element on their land, which escapes and damages a neighbour, will be
liable. Here, the claimant only needs to prove that the tort occurred, and that the defendant
was responsible. It is not necessary to prove negligence on the part of the landowner from
which the dangerous substance escaped.
Essential Conditions of Strict Liability:
1. Dangerous/ Hazardous Substance – The defendant will be held strictly liable only if
a
“dangerous” substance escape from his premises. The things which the defendant is holding
in his land should be dangerous to others, tending to cause harm to the public at large.
2. Escapes from land – Another essential condition to make the defendant strictly liable
is that the harmful substance so kept should escape from the premises of the defendant.
Such substance which is in possession of a person should escape and enter someone
else’s premise to cause harm to the other person. It is necessary that the dangerous
object so kept should also escape from the premises of the defendant which leads to a
loss or damage to the property of the plaintiff. The substance, which is in possession
of a person, escapes from the property of such person and enters into another’s
property, harming that person, would make that person liable as per strict liability.
3. Non-natural use of land – It should be kept in mind that there must be some special
use or purpose which increases the danger to others. The use of such land should be
different from the ordinary use of it.
Exceptions to the rule of Strict Liability:
There are several circumstances where the concept of Strict liability does not apply, so what
are those conditions?
1. Plaintiff’s Fault – If the plaintiff suffers damage by his own intrusion into the
defendant’s property then all his rights to complain about the damage so caused are
nullified.
2. Act of God – An event which is beyond the control of any human agency. Such acts
happen exclusively due to natural reasons and cannot be prevented even while
exercising caution and foresight. Such acts which occur due to an unforeseeable event
do not give any right to the plaintiff to complain about the damage suffered.
3. Act of the Third Party – This rule also does not apply when the damage is caused
due to the act of a third party. The third party means that the person is neither the
servant of the defendant nor the defendant has any contract with them or control over
their work. If an act was done by such party, the plaintiff cannot claim his rights.
4. Consent of the Plaintiff – This exception follows the principle of volenti non fit
injuria. This means in situations where the plaintiff has voluntarily consented to suffer
the harm for the common benefit of both, then the defendant would not be held liable.
Absolute Liability:
Absolute Liability, in its basic sense, means a liability which is imposed upon certain conduct,
regardless of whether such conduct is negligent or liability without fault – for which there is
no excuse. If any person is engaged in any hazardous activity and if any harm occurs while
carrying out such activity, then the person will be held liable for the harm or the damage so
occurred under absolute liability.
The rule of Absolute liability in some sense like the rule of strict liability where there are no
exceptions which are available in the case of strict liability. The exceptions present under the
concept of strict liability which does not hold the tortfeasor responsible are when the act is
done by the victim which led to such situations, any act done with the consent of the victim,
any act of God, an act of any third party or any act done under the statutory authority.
Difference between Strict and Absolute Liability:
The Supreme Court, in the case of MC Mehta v. Union of India, distinguished between Strict
and Absolute liability as following-
• Absolute liability will be applied in cases where the industries or companies are
involved in inherently dangerous activities. Thus, the industries other than these
would be covered under Strict liability.
• Another point that distinguished absolute liability from strict liability is that there is
no need for the dangerous substance to escape one’s property, it would be applied to
all those
harmed/ injured inside or outside the premises.
• The exceptions given for strict liability would not be applied for absolute liability.
• The rule that strict liability would only be applied to the non-natural use of the land
would not be applied for absolute liability. It would be applied even if the use is
natural.
10. Negligence
Ans: Negligence is culpable carelessness. " It is- " the absence of such care as it was the duty
of the defendant to use."
What then is meant by carelessness? It is clear, in the first place, that it excludes wrongful
intention. These are two contrasted and mutually inconsistent mental attitudes of a person
towards his acts and their consequences. No result which is due to carelessness can have been
also intended. Nothing which was intended can have been due to carelessness. The essence of
negligence is not inadvertence but indifference. Indifference is exceedingly apt to produce
thoughtlessness or inadvertence; but it is not the same thing. If I am careless, indifferent, as to
the results of my conduct, I shall very probably fail to acquire adequate foresight and
consciousness of them; but I may, on the contrary, make a perfectly accurate estimate of them,
and yet remain equally indifferent with respect to them, and therefore equally negligent.
Negligence, therefore, essentially consists in the mental attitude of undue indifference both
respect to one's conduct and its consequences.
Carelessness or negligence does not necessarily consist in thoughtlessness. Being thoughtless

is one of the forms of negligence. But it is not the only form. When I consciously expose
another to the risk of wrongful harm, but without any wish to harm him, and harm ensues, it
is inflicted not wilfully, since it was not desired, nor inadvertently, since it was foreseen as
possible or even probable, but nevertheless negligently.
The term negligence has two uses, for it signifies sometimes a particular state of mind, and at
other times conduct resulting therefrom. In the former or subjective sense, negligence is
opposed to wrongful intention, these being the two forms assumed by that mens rea which is
a condition of penal responsibility. In the latter or objective sense, it is opposed not to wrongful
intention, but to intentional wrongdoing. A similar double signification is observable in other
words. Cruelty, for example, means subjectively a certain disposition and objectively conduct
resulting from it. The ambiguity can scarcely lead to any confusion, for the two forms of
negligence are necessarily coincident. Objective negligence is merely subjective negligence
realised in conduct; and subjective negligence is of no account in the law, until and unless it
is manifested in act.
In conclusion, negligence, as so defined, is rightly treated as a form of mens rea, standing side
by side with wrongful intention as a formal ground of responsibility. For these are the two
mental attitudes which alone justify the discipline of penal justice. The law may rightly punish
wilful wrongdoing, because, since the wrongdoer desired the outcome of his act, punishment
will supply him for the future with a good reason for desiring the opposite. Also, the law may
justly punish negligent wrongdoing, for since the wrongdoer is careless as to the interests of
others, punishment will cure this defect by making those interests for the future coincident
with his own.
OPTION QUESTIONS
(1)(b) SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
The sociological school of jurisprudence started dominating over the other schools in the initial
years of the 20 Century. It aims to study the circumstances that led to the emergence of legal
institutions and those which control their scope and applicability thereafter. It is completely
unconcerned with the ethical constituents of law. Let us look at some of the notable sociological
jurists and thinkers.
One of the most important aftermaths of the Industrial Revolution was the increased tendency
towards socialization amongst the people. It was recognized that to ensure justice, it is important to
strike a balance between the overall welfare of the society and the protection of individual liberties.
Thus, it was opined that the society is an important element in an individual’s life and vice-versa.
Approaches made from this perspective are known as sociological approaches
Roscoe Pound (1870-1964)
The works of Dean Roscoe Pound have greatly contributed to the school of sociological
jurisprudence. His ideas are a product of his constant confrontation with sociological and
philosophical problems as well as the working of the American courts. Although some may describe
him as completely pragmatic or a utilitarian, he never really denied the important part played by
abstract legal philosophy in the development of legal institutions. However, he did approve of the
various limitations that have been imposed upon it by time and place. Pound is credited for the
growth of the functional attitude in jurisprudence. Functional attitude refers to the attitude of
looking at the functional aspects and working of law rather than its abstract contents. According to
him, the purpose of sociological jurisprudence is to ensure that social facts are taken into
consideration while formulating, interpreting, and applying laws.
Theory of Social Engineering
Pound frequently stated that the task of a lawyer is analogous to that of an engineer. Pound defined
interests as wants or desires which are asserted by individuals in a society. Law must attend to such
assertions to create an organized society. According to him, the purpose of social engineering is to
build a society in which maximum wants are satisfied with minimum friction and waste. Thus, it
must balance competing interests. Pound classified various interests as follows:
1. Private Interests- These are an individual’s “interests of personality” such as physical integrity,
reputation, freedom of volition and freedom of conscience.

2. Public Interests- These are the interests asserted by individuals either involved in politics or
as viewed from the standpoint of political life.
3. Social Interests- These are the interests pertaining to the social life of an individual and
generalized as the interests of social groups. These may pertain to:
• General Security
• Security of social institutions
• General Morals
• Conservation of Social Resources
• General Progress
• Individual life
One of the most important outcomes of sociological jurisprudence is that it promoted field study to
evaluate the interrelation between law and society. Another important outcome is that it evaluated
abstracted ideas on an empirical basis. Critics have argued that the sociological school of
jurisprudence teaches “a little of everything except law.” They further state that a textbook of
sociology cannot be converted into that of jurisprudence by simply changing the title. Nevertheless,
it is difficult to deny the importance of sociological school in the study of law for; firstly, it helps us
understand the evolution of law in a better manner, secondly, the element of human interest shall
always play a prominent role in law and lastly, study of social interest leads to a better understanding
of the legal system
(2)(b) NATURAL LAW
Natural School of Law:
Natural law thinking is an important tool in political and legal ideology in modern times. The term
‘natural law’ essentially refers to the legal system laid down in nature since the dawn of life on the
planet. Unlike positive law, natural law does not require a “politically superior” authority to
formulate laws. Natural rights are conferred and protected by God himself.
Lord Llyod describes natural law as a mere law of self-preservation or an operative law of nature
that constrains a man to behave in a certain way.
History
According to Friedmann, the history of natural law school is a “tale of the search of mankind for
absolute justice and its failure”. Natural law has always appeared, in some form or other, throughout
the various ages, as an idea of law higher than positive law. With the changing sociopolitical
conditions, the idea of natural law is also undergoing change. However, one aspect that appears to
be permanent is the appearance of nature as an ideal higher than that of positive law.
Natural law has helped in the transformation of the old civil law of Romans. It has validated the idea
of international law. It has been used as a weapon in the fight against absolutism. At different times,
the natural law school has been put to different uses. The history of natural law school can be
traced as follows:
Greece
The Greeks are said to have laid the foundations of the natural law school. Heraclitus observed a
certain rhythm in events and termed it as “destiny, order, and reason of the world.” With this, he laid
down the basis of natural law. Nature, according to the Greeks, refers to a certain order in things.
They identified the relation between such an order and law. This thinking formed the basis for the
Greek school of enlightenment in the 5th century B.C. It went on to dominate the philosophical
thinking of those times
Socrates
Socrates identified that particular element of natural law which calls for adherence to positive law.
However, he argued that natural law does not demand blind adherence to positive law. It must be
critically evaluated by men, using their insight. This element of natural law was a climacteric factor
during his age.
Plato
Plato’s ideas mainly revolved around the concept of natural justice. According to him, each
individual is given a certain sense of justice by divine power. Such a sense of justice and ethical
reverence has been given to him to facilitate his survival by forming unions with other individuals.
An ideal State is one where a person is given a role that justifies the capabilities that he possesses.
His Republic can be said to be a product of his pursuit for the basis of justice.
Aristotle
Aristotle views the world as a composition of nature. According to him, man is a part of the creation
of God. Man is endowed with the gift of reason which distinguishes him from other creatures
created by God. He argues that when a man lives in accordance with “reason”, it can be said that he
is living “naturally”.
India
The Hindu legal system is one of the most ancient legal systems of the world. It is based on the
concept and philosophy of “Dharma”. The Hindu concept of dharma might appear to be like the
natural law school of jurisprudence. Dharma refers to the order set by nature and the adherence of
human beings to such natural order. Dharma includes the concept of nyaya or justice.
The term natural order implies the cosmic order- the law which sustains the entire universe. The
Hindus believed that dharma ensures that humans exist in harmony with the entire cosmos or
universe.
(3)(b) QUESTIONS OF LAW
A question of law is understood in three senses:
a. First sense
A question of law is one where answer is already prescribed by some rule of law. Thus, the question
as to what the reasonable and proper punishment for murder is a question of law. In such cases the
judicial opinion is excluded, and discretion of the Judge ruled out.
b. Second Sense
The question as to what law on point is such question arises where notwithstanding the existence of
law on the point, it is dubbed with uncertainty. Such a situation is a matter of common occurrence
because the language of the statute is always capable of various interpretations and it is in this
sphere that the lawyers play the most important role. So, interpretation of a particular provision of
law is a question of law in this second sense but once it has been interpreted either way a superior
court it becomes a question of law in the first sense.
c. Third Sense
In jury, trails, such questions as are to be answered by the judge are named questions of law as
distinguished from those which are to be answered by the jury and which are called questions of
fact. This classification of the definition of question of law is however incorrect because the judge
may often determine questions of fact also but for that mere reason such questions would not turn
out to be questions of law. Questions of fact
a. Broad sense
In its broad sense question of fact means a question other than a question of law. Thus,
i. Any question not answered by any fixed rule of law. ii. Any question other than what the law
on point is. iii. Any question which is to be decided by the jury and not by the judge, are
question of fact.
b. Restricted sense
In its restricted sense the terms mean a question of fact opposed to a question of judicial discretion.
Thus, whether in a case of breach of contract the plaintiff should be allowed specific performance or
merely left out with compensation is a question of discretion. Or where matters of opinion arise
before the court, the court has discretion to adopt whichever view it deems best suited the
circumstances of the case. In such cases, however, no rule of law is applicable, and it would,
therefore, be appropriate to call them, questions of discretion.
Comparison of question of fact and question of discretion
i. Questions of fact are question of what is. Questions of discretion are questions of right or
what ought to be.
ii. Questions of fact are to be proved by evidence and demonstration. Questions of discretion
are subjects of reasoning and argument. iii. In questions of fact, the court seeks to find out the truth.
In questions of discretion, the court’s aim is to determine what is just.
Conversion of questions of fact and discretion into those of law
As we have already seen, in the primitive stage of society, the basis of decision was the sole
discretion of the judge, unfettered by any fixed rules or principles. With the advancement of society
fixed principles or formulae came to be evolved and the judge had to follow them but these
principles being general and vague left much room for the exercise of judicial discretion. Later,
elaborate and all covering statues were framed but these again due to their being expressed in
language, which is an unruly horse and capable of being interpreted in various ways, still left
sufficient room for the judge to exercise his discretionary powers.
The situation exists even to this day. But with the development of society and growth of law, the
discretion of the courts is gradually being curtailed, firstly, by liberal enactment of statutes and
secondly, by previous judicial decisions and authoritative opinion. The developed legal system aims at
exclusion of the moral judgments of the courts and to compel them to decide cases, not according to
their discretion, but according to fixed principles. To achieve this end, decisions of superior courts are
permanently preserved in Law Reports and courts are bound to act according to the rules laid down
therein. In this way, what were formerly mere questions of discretion are converted, at a later stage,
into questions of law. Likewise, questions of fact may also at a later stage be converted into questions
of law
(5)(b) CUSTOMS
Custom as a source of law
Customs are the earliest sources of law and form the basis of the English Common Law system as
we see it today. They can be described as cultural practices which have become definite and backed
by obligation or sanction just by virtue of widespread practice and continue presence. Definitions
John Salmond
“Custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of justice and public utility.”
Customs into two:
General Custom – A general custom has the force of law throughout the territory of a state. For
example, the Common Law in England.
Origin of Customs
In primitive societies, there was no external authority over people, yet people organized themselves
in cohesive groups with a mechanism for fairness and liberty.
People developed rules and regulations through spontaneous reaction to their circumstances as
well as a coordinated conscious decision to arrive at them.
Eventually, people started recognizing traditions, practices, rituals which were prevalent in a certain
territory or group and saw how they formed a systematized approach to social regulation.
In Britain, Jurists and legislators started studying these patterns, recording their prevalence, usage
and applicability. These came to be known as customs, which were then formalized and put into
legislation in the Common Law of England.
Types of Customs

For example, every society has some customs about how to dress, how to address elders or how to
conduct marriages etc. These are not legally binding but can still have powerful sanctions attached
to them. For example, if a person comes to a funeral wearing colorful clothes, he will be ostracized
and alienated by others around him.
These customs, although not binding, hold tremendous importance in society and must be followed
uniformly for efficient functioning of society
Legal Customs
The sanction of a legal custom is certain and absolute. It is negative in its operation, in the sense
that, if the custom is not followed, certain desired consequences would not take place. For example,
if you do not follow the custom of marriage properly, that marriage will be considered void and any
children born out of that marriage will be considered illegitimate.
Legal custom is operative per se regardless of any agreement of participant parties contrary to the
custom. They are unconditional and absolute in their function and take up the form of law.
According to Salmond, Legal Customs have legal obligation or proprio vigor. He divides legal customs
further into General and Local Customs which have been discussed earlier.

A conventional custom or usage is a practice which comes into practice due to it being followed for
a long period of time and arising out of a contract between the parties; it does not have any legal
character. Thus, a usage or conventional custom is an established norm which is legally enforceable,
not because of any legal authority independently possessed by it, but because it has been expressly
or impliedly incorporated in a contract between the parties concerned.
Customs and Local Conventional Customs. General Conventional Customs are extensively practiced
throughout a particular territory, whereas Local Conventional Customs are limited to a particular
place or to a particular trade or transaction.
7(b) ELEMENTS OF POSSESSION
To gain possession, then, a man must stand in a certain physical relation to the object and to the
rest of the world, and must have a certain intent i.e. to say that possession has two elements.
1. Animus Possidendi/ Domini: Refers to the intention of the individual to hold on to

the object. The intent necessary to constitute possession is the intent to
appropriate to oneself the exclusive use of the thing possessed. It is an exclusive
claim to a material object. It is a purpose of using the thing oneself and of
excluding the interference of other persons. As to this necessary mental attitude
of the possessor there are the following observations to be made:
(i) The animus sibi habendi is not necessarily a claim of right. It may be
consciously wrongful. The thief has a possession no less real than that of
a true owner. The possessor of a thing is not he who has, or believes that
he has, a right to it, but he who intends to act as if he had such a right.
To possession in good faith the law may and does allow special benefits
which are cut off by fraud, but to possession as such—the fulfilment of
the self-assertive will of the individual good faith is irrelevant.
(ii) The claim of the possessor must be exclusive. Possession involves an
intent to exclude other persons from the uses of the thing possessed. A
mere intent or claim of unexclusive use cannot amount to possession of
the material thing itself.

(iii) The exclusion, however, need not be absolute. I may possess my land
notwithstanding the fact that some other person, or even the public at
large, possesses a right of way over it. For, subject to this right of way, my
animus possidendi is still a claim of exclusive use. I intend to exclude all
alien interference except such as is justified by the limited and special
right of use vested in others.
(iv) The animus possidendi need not be specific but may be merely general.
It does not necessarily involve any continuous or present knowledge of
the thing possessed or of the possessor's relation to it. A general intent
with respect to a class of things is sufficient (if coupled with the

necessary physical relation) to confer possession of the individual
objects belonging to that class, even though their individual existence is
unknown. Thus, I possess all the books in my library, even though I may
have forgotten the existence of many of them.
Corpus Possessionis: To constitute possession the animus domini is not in itself sufficient but must
be embodied in a corpus. The claim of the possessor must be effectively realised in the facts; that is
to say, it must be actually and continuously exercised. The will is sufficient only when manifested in
an appropriate environment of fact. Corpus Possessionis can be understood in two ways- (1) on the
relation of the possessor to other persons, (2) on the relation of the possessor to the thing
possessed.
(i) Relation of the possessor to other persons: So far as other
persons are concerned, I am in possession of a thing when the
facts of the case are such as to create a reasonable expectation
that I will not be interfered with in the use of it.
A thing is possessed, when it stands with respect to other persons in such a position
that the possessor, having a reasonable confidence that his claim to it will be respected,
is content to leave it where it is.
Relation of the possessor to the thing possessed: The necessary relation between the possessor and
the thing possessed is such as to admit of his making such use of it as accords with the nature of the
thing and of his claim to it. There must be no barrier between him and it, inconsistent with the nature
of the claim he makes to it. For example: I have the possession of the house I live in the house because
of my physical power/ control of the house and the fact that I can use my property in a manner that I
choose, excluding others from any kind of interference. This also means that when I am not present
in my house, I still have it in my possession because I can return to my house as per my will. My dog
is away from home, but he will probably return. I have mislaid a book, but it is some- where within
my house and can be found with a little trouble. These things, therefore, I still possess, though I cannot
lay my hands on them at wil
8(b)CHARARESTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following characteristics: 1.
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. 2. Ownership
can be limited by agreements or by operation of law. 3. The right of ownership can be restricted in
time of emergency. 4. An owner is not allowed to use his land or property in a manner that it is
injurious Downloaded by Must know Facts (mustknowfacts61@gmail.com) lOMoARcPSD|17719039
73 | P a g e to others. 5. His right of ownership is not unrestricted. 6. The owner has a right to posses
the thing that he owns. 7. It is immaterial whether he has actual possession of it or not. 8. The most
common example of this is that an owner leasing his house to a tenant. 9. Law does not confer
ownership on an unborn child or an insane person because they are incapable of conceiving the
nature and consequences of their acts. 10.Ownership is residuary in character. 11.The right to
ownership does not end with the death of the owner; instead it is transferred to his heirs.
12.Restrictions may also be imposed by law on the owner’s right of disposal of the thing owned. Any
alienation of property made with the intent to defeat or delay the claims of creditors can be set aside
9(b) NEGLIGENCE
Negligence:
Negligence is culpable carelessness. " It is- " the absence of such care as it was the duty of the
defendant to use."
What then is meant by carelessness? It is clear, in the first place, that it excludes wrongful intention.
These are two contrasted and mutually inconsistent mental attitudes of a person towards his acts
and their consequences. No result which is due to carelessness can have been also intended.
Nothing which was intended can have been due to carelessness. The essence of negligence is not
inadvertence but indifference. Indifference is exceedingly apt to produce thoughtlessness or
inadvertence; but it is not the same thing. If I am careless, indifferent, as to the results of my
conduct, I shall very probably fail to acquire adequate foresight and consciousness of them; but I
may, on the contrary, make a perfectly accurate estimate of them, and yet remain equally indifferent
with respect to them, and therefore equally negligent. Negligence, therefore, essentially consists in
the mental attitude of undue indifference both respect to one's conduct and its consequences.
Carelessness or negligence does not necessarily consist in thoughtlessness. Being thoughtless is one
of the forms of negligence. But it is not the only form. When I consciously expose another to the risk
of wrongful harm, but without any wish to harm him, and harm ensues, it is inflicted not wilfully,
since it was not desired, nor inadvertently, since it was foreseen as possible or even probable, but
nevertheless negligently.
The term negligence has two uses, for it signifies sometimes a particular state of mind, and at other
times conduct resulting therefrom. In the former or subjective sense, negligence is opposed to
wrongful intention, these being the two forms assumed by that mens rea which is a condition of
penal responsibility. In the latter or objective sense, it is opposed not to wrongful intention, but to
intentional wrongdoing. A similar double signification is observable in other words. Cruelty, for
example, means subjectively a certain disposition and objectively conduct resulting from it. The
ambiguity can scarcely lead to any confusion, for the two forms of negligence are necessarily
coincident. Objective negligence is merely subjective negligence realised in conduct; and subjective
negligence is of no account in the law, until and unless it is manifested in act.
In conclusion, negligence, as so defined, is rightly treated as a form of mens rea, standing side by
side with wrongful intention as a formal ground of responsibility. For these are the two mental
attitudes which alone justify the discipline of penal justice. The law may rightly punish wilful
wrongdoing, because, since the wrongdoer desired the outcome of his act, punishment will supply
him for the future with a good reason for desiring the opposite. Also, the law may justly punish
negligent wrongdoing, for since the wrongdoer is careless as to the interests of others, punishment
will cure this defect by making those interests for the future coincident with his own.
The standard of care:
Carelessness is not culpable, or a ground of legal liability, save in those cases in which the law has
imposed a duty of carefulness. In all other cases complete indifference as to the interests of others
is allowable. No general principle can be laid down, however, about the existence of this duty, for
this is a matter pertaining to the details of the concrete legal system, and not to abstract theory.
Carelessness is lawful or unlawful, as the law sees fit to provide. In the criminal law liability for
negligence is quite exceptional.
Therefore, negligence per se was not treated as a ground of penal liability. It is considered as a degree
of mens rea only in cases where the law prescribes for the same.
10(b) SOURCES OF OBLIGATIOIN
Classed in respect of their sources or modes of origin, the obligations recognised by English law are
divisible into the following four classes:
(1) Contractual
(2) Delietal
(3) Quasi-contractual (4) Innominate.

Obligations arising out of a contract: The first and most important class of obligations consists of
those which are created by contract. that it is that kind of agreement which creates rights in
perso7iam between the parties to it. Rights in 'personal obligations are the most numerous and
important kind, and of those which are not obligations comparatively few have their source in the
agreement of the parties. The law of contract, therefore, is almost wholly comprised within the law
of obligations, and for the practical purposes of legal classification it may be placed there with
sufficient accuracy. The coincidence, indeed, is not logically complete: a promise of marriage, for
example, being a contract, which falls within the law of status, and not within that of obligations.
Neglecting, however, this small class oi personal contracts, the general theory of contract is simply a
combination of the general theory of agreement with that of obligation.
Obligations arising from torts: The second class of obligations consists of those which may be
termed delictal, or in the language of Roman law obligationes ex delicto. By an obligation of this
kind is meant the duty of making pecuniary satisfaction for that species of wrong which is known in
English law as a tort. Etymologically this term is merely the French equivalent of the English wrong
tort (tortum), being that which is twisted, crooked, or wrong; just as right (rectum) is that which is
straight. As a technical term of English law, however, tort has become specialised in meaning, and
now includes merely one class of civil wrongs. A tort may be defined as a civil wrong, for which the
remedy is an action for damages, and which is not solely the breach of a contract or the breach of a
trust or other merely equitable obligation. This definition contains four essential elements, there
being four kinds of wrongs excluded by it from the sphere of tort:
1. A tort is a civil wrong; crimes are wrongs, but are not in themselves torts, though there is
nothing to prevent the same act from belonging to both these classes at once.
2. Even a civil wrong is not a tort unless the appropriate remedy for it is an action for damages.
There are several other forms of civil remedy besides this; for example, in- junctions, specific
restitution of property, and the payment of liquidated sums of money by way of penalty or otherwise.
Any civil injury which gives rise exclusively to one of these other forms of remedy stands outside the
class of torts.
3.No civil wrong is a tort if it is exclusively the breach of a contract. The law of contracts stands by
itself, as a separate department of our legal system, over against the law of torts.
Obligations arising from Quasi- Contract: Both in Roman and in English law there are certain
obligations which are not in truth contractual, but which the law treats as if they were. They are
contractual in law, but not in fact, being the subject-matter of a fictitious extension of the sphere of
contract to cover obligations which do not in reality fall within it. The Romans called them
obligationes quasi ex contractu. English lawyers call them quasi-contracts or implied contracts, or
often enough contracts simply and without qualification. " Implied contracts" says Blackstone, " are
such as reason and justice dictate, and which, therefore, the law presumes that every man
undertakes to perform."
From a quasi-contract, or contract implied in law, we must carefully distinguish a contract implied in
fact. The latter is a true contract, though its existence is only inferred from the conduct of the parties,
instead of being expressed. Thus, when I enter an omnibus, I impliedly, yet agree to pay the usual fare.
A contract implied in law, on the contrary, is merely fictitious, for the parties to it have not agreed at
all, either expressly or tacitly

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OCTOBER/NOVEMBER 2021

JURISPRUDENCE QUESTION PAPER

1. Explain the value and nature of Jurisprudence?

Jurisprudence and Sociology

Jurisprudence and Psychology

However, psychological researchers have greatly contributed to penology and criminology.

Jurisprudence and Ethics

Jurisprudence and Economics

Jurisprudence and History

Jurisprudence and Political Science

According to Friedmann, jurisprudence is linked to philosophy at one end and to political

• Arthashastra- The political treatise of Hindus

2. Sociological School of Jurisprudence

Rudolf von Ihering (1818-1898)

Roscoe Pound (1870-1964)

Theory of Social Engineering

1. Private Interests- These are an individual’s “interests of personality” such as physical

• Security of social institutions

• Conservation of Social Resources

3. Discuss the theories of punishment

4. Primary and Secondary rights

5. Explain in brief the different sources of law.

Ans : SOURCES OF LAW

Legislation as a source of law

Some different types of legislation are as follows.

There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent.

Delegated (subordinate or subsidiary) Legislation alludes to those laws made by people or

Advantages of Legislation as a Source of Law

Verifiably additionally the legislation has dependably been perceived as a significant

Some main advantages of legislation are as follows:

Legislature and the legal executive.

iv. Reliance on Accidental Legislation — Legislation is independent and emerges out of

v. Unrivalled in Form — It is predominant in structure, brief, clear, effectively available,

Precedent as a source of law

Inductive and Deductive Methods

Authority of Previously Decided Cases

According to Bentham precedents are ‘Judge made Law.’

According to Austin precedents are ‘Judiciary’s Law.’

Thus, it can be inferred that precedents are:

• Guidance or authority of past decisions for future cases.

• Precedents must have opinio-juris.

Higher Courts in other Circuits

Statements made in obiter dicta

Treatises, Restatements, Law Review Articles

Courts in other countries

It is controversial whether it is appropriate for a U.S. court to consider foreign law or

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent

Binding Precedent in England

The authority of a decision as a precedent lies in its Ratio Decidendi.

Ratio Decidendi and Obiter Dictum

Custom as a source of law

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or

He described the development in distinct steps. These are:

i. Law by rulers under divine inspiration

ii. Developing of Customs

iii. Knowledge of law in the hands of priests

According to Holland, “custom is a generally observed course of conduct”.

Customs without binding obligation

Customs with binding obligations